Tipper and Todd

[2014] FCCA 1544

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIPPER & TODD [2014] FCCA 1544

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary orders – best interests of the child – attachment – child aged 2 years and 6 months – appointment of Independent Children’s Lawyer – passport – whether child’s passport should be surrendered.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 67ZD, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS TIPPER

Respondent: MR TODD

File Number: SYC 1658 of 2014

Judgment of: Judge Scarlett

Hearing date: 14 July 2014

Date of Last Submission: 14 July 2014

Delivered at: Sydney

Delivered on: 14 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Paul Marsh Solicitors

Counsel for the Respondent: Ms Hayward

Solicitors for the Respondent: Rafton Family Lawyers

ORDERS

BY CONSENT UNTIL FURTHER ORDER

1. Order 7 made on 16 June 2014 is discharged.

2. Without admission by the Mother that the child’s time with her is sufficient; the child is to spend time with the Mother:

   (a)From 10:00am to 6:00pm each Saturday.

3. The Mother is to collect the child from the Father’s residence at the commencement of the child’s time and the Father is to collect the child from the Mother’s residence at the conclusion of the time.

4. Both parties file and serve any further affidavits on which they intend to rely on or before 11 August 2014.

AND IT IS FURTHER ORDERED THAT UNTIL FURTHER ORDER

1. The child X born (omitted) 2012 is to spend time with the Applicant Mother from 10:00am to 3:00pm each Sunday in addition to the time set out in Order (2)(a) above.

2. The Respondent Father must surrender the child’s passport to the Sydney Registry of the Court within fourteen (14) days.

3. As provided by Section 68L of the Family Law Act 1975 the interests of the child X born (omitted) 2012 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

4. Within fourteen (14) days from the date of this Order the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

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

6. The Application is listed for Interim Hearing at 10:00am on 18 September 2014.

7. For the purpose of the Interim Hearing, the parties may rely on one (1) affidavit per witness each affidavit not to exceed ten (1) pages of text.

8. All affidavits to be relied upon in the Interim Hearing must be filed and served no later than Thursday 11 September 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1658 of 2014

MS TIPPER

Applicant

And

MR TODD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of a child named X who was born on (omitted) 2012. The child is currently living with the Respondent Father.

2. The Application was returnable before the Court on 16^th June 2014, on which date Orders were made until further order providing that:

   a)The parties were restrained from removing the child from Australia;

   b)The Marshal of the Court and officers of the Australian Federal Police and the police forces of the States and Territories of Australia were requested to give effect to the above order;

   c)The child’s name was to be placed on the Family Law Watchlist[1] maintained by the Australian Federal Police;

   d)The Respondent was to file and serve a Response, and an affidavit by 7^th July;

   e)The parties were directed to attend a Child Dispute Conference with a Family Consultant; and

   f)The child X was to spend time with the mother from 10:00am until 1:00pm each Saturday and Sunday.  

   [1] The Family Law Watchlist was formerly known as the Airport Watch List

The Child Dispute Conference

1. The parties attended a Child Dispute Conference on 10^th July. The Child Dispute Conference Memorandum was released to the parties’ solicitors on Monday 14^th July. The memorandum noted that the parties agreed to equal shared parental responsibility for the child. The Father seeks that the child should live with him and spend time with the Mother on weekends. The Father claimed that the Mother had exhibited significant mental health problems, which the Mother denied. There have been allegations of family violence and there has previously been an Apprehended Domestic Violence Order in place against the Father.

2. The family consultant suggested that a child of the young age of this child required a stable home base but also regular time with the other parent. The family consultant also noted concerns about the Mother’s mental health and the family violence and suggested that further independent information would be required in considering the child’s parenting arrangements.

3. The family consultant recommended that a Family Report should be ordered but only after a psychiatric assessment has occurred.

Consent Orders and Submissions

1. The parties consented to an interim order increasing the Mother’s time with the child on Saturdays from the current 10:00am to 1:00pm to 10:00am to 6:00pm. However, the Father sought that the Mother’s time with the child on Sundays should be dispensed with.

2. The Mother also has fears that the Father may attempt to remove the child from Australia, even though there are injunctive orders and a Watchlist order in place. She seeks an order that the child’s passport either be surrendered to her or to the Court.

Conclusions

1. The best interests of the child remain the paramount consideration. Section 60CC of the Family Law Act 1975 (Cth) sets out the way that a Court determines what is in a child’s best interests. Weight must be given to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, but the Court must also consider the benefit to the child of having a meaningful relationship with both parents.

2. It is a matter of concern that the father proposes that this child, aged only two years and six months, should only spend time with his mother one day each week, albeit for a period of eight hours on a Saturday. Since the orders were made on 16 June, this child has been spending time with his mother twice a week, on Saturdays and Sundays, which appears to me to be more in keeping with the needs of a child under the age of four years in developing and maintaining an attachment to his mother.

3. In my view, the Sunday time with the Mother should be retained. I propose to increase that time to five hours, from 10:00am to 3:00pm each Sunday.

4. The likelihood of the Father, or either parent, attempting to take the child out of Australia is fairly low. However, I will order that the child’s passport should be surrendered to the Registrar of the Court within fourteen days.

5. I am not at this stage prepared to order that either parent undergo a psychiatric assessment. The Mother has produced a medical report from a doctor at the practice where she is normally a patient, but not the general practitioner who has been treating her since March 2010, which states, rather alarmingly, that the Father had arranged for the Mother to be checked by a psychiatrist, against the Mother’s will.

6. The allegations of mental illness and family violence are concerning enough for the Court to consider the appointment of an Independent Children’s Lawyer under the provisions of s.68L of the Family Law Act 1975. Whilst both Ms Winfield of Counsel, for the Mother, and Ms Hayward, solicitor for the Father, were of the view that such an appointment was premature, I consider that the matters raised are of the type referred to by the Full Court of the Family Court in Re K[2]. Accordingly, I propose to order that the child’s interests should be separately represented by a lawyer, and Legal Aid NSW will be requested to arrange this representation.

   [2] (1994) 17 Fam LR 537; FLC 92-461

7. As required by s. 61DA of the Act, I have considered the presumption of equal shared parental responsibility. Both the Applicant and the Respondent seek that the parties should have equal shared parental responsibility for the child, so there is no issue. In any event, s.61DA(3) provides that the presumption applies when the Court is making an interim order unless the Court considers that it would not be appropriate in the circumstances.

8. This is not a case where an equal time order under s. 65DAA(1) or a substantial and significant time order under s.65DAA(2) should be considered until the issues can be argued properly at an interim hearing, which both parties seek.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 July 2014