Tipper and Todd (No.2)
[2014] FCCA 2231
•26 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TIPPER & TODD (No.2) | [2014] FCCA 2231 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – application in a case – application to vary earlier orders – best interests of the child – residence – whether child should live with mother prior to final hearing – child aged 2 years and 8 months – whether the child should spend overnight time with the mother – allegations of family violence – mental health issues – whether the mother should undergo a psychological assessment – consideration of medical and psychological evidence. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 60CD, 61DA, 65DAA, 68L |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 followed Tipper & Todd [2014] FCCA 1544 |
| Applicant: | MS TIPPER |
| Respondent: | MR TODD |
| File Number: | SYC 1658 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 23 September 2014 |
| Date of Last Submission: | 23 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Paul Marsh Solicitors |
| Solicitor for the Respondent: | Ms Reid |
| Solicitors for the Respondent: | Rafton Family Lawyers |
| Solicitor for the Independent Children's Lawyer: | Ms Truong |
| Solicitors for the Independent Children's Lawyer: | Legal Aid New South Wales |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are discharged save and except Orders 1, 2 and 3 made on 16 June 2014.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child [X] born [omitted] 2012.
The child [X] is to live with the Father.
The child is to spend time with the Mother as follows:
(a)For a period of four (4) weeks commencing on 27 September 2014 each weekend from 10:00am on Saturday until 1:00pm on Sunday;
(b)Thereafter until 1 January 2015 each weekend from 10:00am on Saturday until 6:00pm on Sunday; and
(c)From and after 2 January 2015 each weekend from 5:00pm on Friday until 6:00pm on Sunday PROVIDED THAT if the Monday following the weekend is a public holiday then the Mother’s time with the child will extend to 6:00pm on the Monday.
The Father must do all acts and things necessary to ensure that the child [X] continues to attend [I] Family Day Care at [G] each Monday to Friday between the hours of 10:00am and 5:00pm each day.
The Father and the Mother must do all acts and things and complete all necessary documents to ensure that the Father’s name and contact details and the Mother’s name and contact details are recorded by the child’s Family Day Care centre.
The Mother is to continue to consult her treating general medical practitioner with respect to her mental health and is to accept any treatment recommended by her general medical practitioner including any referrals to complementary services or professionals.
For the purpose of the child’s time with the Mother in accordance with these Orders unless otherwise agreed by the parties in writing the mother is to collect the child [X] from outside the Father’s residence at the commencement of the child’s time with the Mother and the Father is to collect the child from outside the Mother’s residence at the conclusion of the child’s time with the Mother.
The Mother must ensure that the Father is kept informed of:
(a)any medical problems or illnesses suffered by the child [X] whilst in the Mother’s care;
(b)any medication prescribed for the child; and
(c)any other matter relevant to the child’s welfare.
The Father must ensure that the Mother is kept informed of:
(a)any medical problems or illnesses suffered by the child [X] whilst in the Father’s care;
(b)any medication prescribed for the child; and
(c)any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties the Mother and Father must:
(a)communicate by telephone any matters of an urgent nature and otherwise;
(b)communicate by email.
Each party must advise the other party and keep the other party advised of their current address and contact telephone numbers including both landline and mobile telephone number if applicable and advise the other party of any changes to those details at least fourteen (14) days prior to such change occurring.
Each party must not make any critical or derogatory remarks in relation to the other parent in the presence or hearing of the child or permit any third party to do so.
IT IS NOTED that publication of this judgment under the pseudonym Tipper & Todd (No.2) 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
This is an application, made in an Application in a Case filed on 7th April 2014, by the Mother of a little boy named [X] for an order that he should live with her and spend time with his father. [X] is aged two years and eight months. He has been living with his father since the parties separated, but the Applicant says that this was not by her choice.
The Father opposes the Mother’s proposal. He seeks orders that the child should live with him and spend time with his mother from 10:00am to 1:00pm each Saturday and Sunday, which is actually a reduction of the time that the child currently spends with the Mother in accordance with the current interim Orders. He also seeks an order that the child should spend time with the Mother and himself at dinner one night a week.
During the interim hearing, the Father’s solicitor told the Court that her client conceded that the Mother might be able to spend overnight time with the child on the proviso that she first receives a clearance from a psychologist.
The Independent Children’s Lawyer does not support an order providing that the child should live with the Mother rather than the Father at this stage, but has proposed that overnight contact should be introduced as part of a graduated program where the child spends, first of all, one and a half days on a weekend with the Mother, increasing to a full weekend after a period of four weeks.
Background
In their respective case outlines, each party set out a chronology of events, which were helpful to the Court.
The parties are both of a [omitted] background, although the Mother was born in Sydney.
The Father was born on [omitted] 1980, and is therefore now 34 years old.
The Mother was born on [omitted] 1986. She has recently turned 28.
The parties were married on [omitted] 2011. The Mother was in employment but ceased working prior to the marriage. She has now recommenced work.
There is one child of the marriage, [X], a little boy who was born on [omitted] 2012.
The Father resigned from his employment in June 2013 and remains unemployed.
The parties separated on 11th March 2014 when the Mother left the matrimonial home, leaving the child with the Father. It is the Mother’s case that she was not permitted to take the child with her and the Father has hindered or prevented her from spending time with the child.
The Mother commenced proceedings on 21st March 2014 when she filed an Application for parenting orders. The Application was returnable on 16th June 2014.
On 7th April 2014 the Mother filed an Application in a Case, seeking orders that:
a)the child should live with her;
b)the child should spend time with the Father on Saturdays, on the Father’s birthday and on Father’s Day;
c)the parties should not remove the child from Australia; and
d)the Father should surrender the child’s passport.
On the return date of the Mother’s Applications, 16th June 2014, the Court made orders providing that:
a)the parties were restrained from removing the child from the Commonwealth of Australia;
b)the child’s name was to be placed on the Family Law Watch List maintained by the Australian Federal Police;
c)the parties were to attend a Child Dispute Conference with a Family Consultant on 10th July 2014; and
d)the child [X] was to spend time with the Mother from 10:00am to 1:00pm each Saturday and Sunday.
When the Application returned to Court on 14th July, the parties entered into Consent Orders about some matters and an interim hearing was conducted in respect of other issues.
The Consent Orders provided that the time the child was to spend with the Mother on Saturdays was to be increased so that the child would spend from 10:00am to 6:00pm with the Mother each Saturday.
After the interim hearing, the Court ordered that:
a)the child would spend time with the Mother from 10:00am to 3:00pm each Sunday in addition to the time each Saturday to which the parties had consented;
b)the Father must surrender child’s passport to the Sydney Registry of the court within 14 days;
c)the interests of the child were to independently represented by a lawyer; and
d)an interim hearing was to take place on 18th September 2014.[1]
[1] Tipper & Todd [2014] FCCA 1544
As it turned out, the interim hearing was not reached on 18th September and was adjourned to 23rd September for hearing. However, Orders were made by consent providing that:
a)the Mother would obtain a report from her treating general medical practitioner with respect to her mental health addressing:
i)current diagnosis and treatment; if any
ii)current treatment, if any;[2]
iii)any other treatment recommended by the practitioner; and
iv)any concerns the doctor may hold with regard to the Mother’s capacity to care appropriately for her son.
b)The parties are to enrol in a “parenting after separation” course.
[2] sic
Evidence and Submissions
The Mother relied on the following documents:
a)her Initiating Application;
b)her Application in a Case filed on 7th April 2014;
c)her affidavit of 12th June 2014;
d)the affidavit of her mother Ms T of 16th September 2014;
e)the affidavit of her father Mr T of 17th September 2014; and
f)the affidavit of Dr K of 22nd September 2014.
The Mother also relied on various documents subpoenaed from:
a)[omitted] Medical Centre;
b)Dr N of Psychology in Motion;
c)NSW Police;
d)Mr M Psychology;
e)Department of Family and Community Services; and
f)[I] Family Day Care.
The Father relied on:
a)his Response filed on 7th July 2014;
b)his affidavit of 3rd July 2014;
c)the Child Dispute Conference Memorandum to Court of 10th July 2014; and
d)the above subpoenaed material.
Ms Reid, for the father, in her Case Outline, referred the Court to the decision in Goode & Goode[3], where the Full Court of the Family Court, at [82], set out the way that interim proceedings should be conducted. I propose to follow that procedure, so far as it is applicable.
[3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
I note that their Honours wryly commented at [81]:
In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.[4]
[4] Ibid at [81] per Bryant CJ, Finn & Boland JJ
The Parties’ Proposals
In her Application in a case filed on 7th April 2014, the Mother sought 11 separate orders, not all of which are still relevant. Orders 6, 7, 8 and 9 of the Application in a Case have already been dealt with by the Orders made on 14th July 2014. The relevant orders sought by the Mother that remain outstanding are:
2. The parties have equal shared parental responsibility for the child [X] born [omitted] 2012.
3. The child live with the applicant.
4. The respondent spend time with the child, [X] (DOB) [omitted] 2012) as follows:
a) on Saturday of each week from 9am to 6pm;
b) on the respondent’s birthday each year;
c) on Father’s Day each year.
5. For the purpose of these orders, hand over at the commencement and conclusion of the times the child [X] is to spend time with the respondent pursuant to order 3 shall occur at [address omitted], and
a) the child shall be collected at [address omitted] by the respondent at the commencement of the time he is to spend with the respondent; and
b) the child shall be returned by the respondent at the conclusion of the time he is to spend with the respondent.
The Father seeks interim orders in his Response which was filed on 7th July 2014, of which the following are relevant[5]:
[5] The father’s proposed Order 7, requiring the mother to attend a parenting course, has already been dealt with by Order 2 made by consent on 18 September 2014
1. That the parties shall have equal shared parental responsibility for the child [X] (born [omitted] 2012);
2. That the child live with the father;
3. That the child spend time with the mother each Saturday and Sunday from 10:00 am until 1:00 pm;
4. For the purposes of changeover the mother shall collect the child from the father’s home at the commencement of her time with the child and the father shall collect the child from the mother’s home at the conclusion of the mother’s time with the child;
5. That the mother shall attend upon her psychiatrist Dr N and/or Dr[6] M and obtain a mental health assessment and provide such report to the solicitors for the father within 14 days of obtaining such report;
6. That the mother shall at all times comply with any mental health plan as recommended by Dr N or Dr M or such other treating mental health practitioner as the mother may be treated by from time to time including but not limited to taking any prescribed medication and attending any counselling or other treatment as recommended;
[6] sic
The Father also sought, in his Case Outline, this Order:
As per Response but also with the possibility of including one night during the week for dinner with the father in attendance.
The Independent Children’s Lawyer handed up a Minute of proposed Orders on the morning of the hearing. The Independent Children’s Lawyer (ICL) proposes that until further Order:
1. The parties have equal shared parental responsibility for the child [X] born [in] 2012 (“the Child”).
2. The Child live with the Father.
3. The Child spend time with the Mother as follow:
a. For 4 weeks commencing 27 September 2014, each weekend from 10.00 am Saturday to 1.00 pm Sunday; and
b. Thereafter, each weekend from 10:00 am Saturday to 6:00 pm Sunday.
4. The Father to do all acts and things necessary to ensure that the Child continue to attend [I] Family Day Care at [G] on Monday to Friday from 10:00 am to 5:00 pm each day.
5. The Mother is to continue to consult her treating general medical practitioner (“the GP”) with respect to her mental health and to accept any treatment recommended by the GP including any referral to complementary services or professionals.
6. For the purpose of the Child’s time with the Mother pursuant to these orders, unless otherwise agreed by the parties in writing, the Mother is to collect the Child from outside the Father’s residence at the commencement of the Child’s time and the Father is to collect the child from outside the Mother’s Residence at the conclusion of the Child’s time with the Mother.
7. The Mother shall ensure that the Father is kept informed of:
a. any medical problems or illnesses suffered by the Child while in the Mother’s care
b. any medication that has been prescribed for the Child
c. any other matter relevant to the Child’s welfare.
8. The Father shall ensure that the Mother is kept informed of:
a. any medical problems or illnesses suffered by the Child while in the Father’s care
b. any medication that has been prescribed for the Child
c. any other matter relevant to the Child’s welfare
9. That for the purposes of communicating information between the parties the Mother and the Father shall
a. communicate by telephone matters of an urgent nature and otherwise
b. communicate by email
10. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details at least 14 days prior to such change occurring.
11. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The Issues in Dispute
The Mother alleges that the Father has engaged in domestic violence towards her. The Father denies this allegation.
The Father claims that the Mother has mental health issues that are currently not under control and that the Mother’s mental health impacts on her ability to care for the child. The Mother denies this claim.
Each party claims to have been the child’s primary caregiver. It is the Mother’s case that she was the primary caregiver until she left the former matrimonial home on 11th March 2014. On the other hand, the Father claims that he has been the child’s primary caregiver since June 2013, when he ceased employment.
The Father claims that the Mother’s parents have been controlling and interfering, and blames them for the breakdown of the parties’ marriage. This is not an issue that can be dealt with at an interim hearing.
Agreed or Uncontested Relevant Facts
There is no issue that there was an altercation between the parties on 24th January 2013 which led to the Mother making a complaint to the Police. The Police applied for an Apprehended Violence Order against the Father naming the Mother as the Protected Person. The following day an Apprehended Violence Order was made against the Father at [omitted] Local Court. It remained in force for 12 months and has not been renewed. There is no current Apprehended Violence Order.
There is also no issue that the Mother was referred to a Dr N, a psychiatrist, in June 2013. Dr N prescribed medication, initially Zolan and later Lexapro, as treatment for anxiety and depression. The medication had unfortunate side effects and the Mother ceased taking it.
Dr N referred the Mother to a clinical psychologist, Mr M, in June 2013, and he commenced seeing her in July of that year.
The Relevant Law in regard to Parenting Applications
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;
b)Section 60CA;
c)Section 60CC;
d)Section 61DA; and
e)Section 65DAA.
Section 60B of the Family Law Act
The Court must have regard to the objects of Part VII of the Act and the principles underlying those objects.
The objects of Part VII are set out in subsection 60B(1) and include:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These two objects are reflected in subsection 60CC(2) of the Act.
The principles underlying the objects of Part VII are set out in s.60B(2) of the Act. These principles include the right of children to know and be cared for by both their parents and the right of children to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents).
Section 60CA of the Family Law Act
Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests.
Section 60CC of the Family Law Act
The primary considerations are set out in subsection 60CC(2) of the Act. They are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required by s.60CC(2A) to give greater weight to the consideration set in paragraph (b).
The additional considerations are set out in subsection 60CC(3). They are contained in paragraphs (a) to (m) of the subsection, although they will not all necessarily be relevant.
Section 61DA of the Family Law Act
Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.
Subsection 61DA(3) applies when the Court is making an interim order, and provides that:
…the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Section 65DAA of the Family Law Act
Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)) or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).
All of the above matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed in some detail, as is required in Goode & Goode[7] at [82].
[7] supra
Relevant matters in Section 60CC of the Act
The Full Court 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)[8].
[8] (2006) 36 Fam LR 422 at 445 [82]
In this case, the issues really concern the two primary considerations in s.60CC(2), the benefit to the child of having a meaningful relationship with both parents as against the need to protect him from physical or psychological harm from abuse, neglect or family violence.
Dealing with the question of family violence first, the father denies that there was any violence but cannot get away from the fact that there was an Apprehended Violence Order made by the [omitted] Local Court on 25 January 2013. Curiously, the father does not refer to the ADVO at all in his affidavit, nor does he address the allegations of domestic violence made by the mother in any way.
The question of family violence is not only referred to in paragraph 60CC(2)(b) but also in paragraph 60CC(3)(j).The existence of a family violence order, or whether there has been an order, is covered in paragraph 60CC(3)(k) of the Act. There is no further evidence about the circumstances of the order, which is no longer in force and has not been renewed.
I am not of the view that there is an unacceptable risk that the child will come to harm as a result of being subjected to, or exposed to, abuse or family violence.
It would hardly be surprising, however, if the Mother were to be wary of spending time in the Father’s company as a result of the violence that she claims that he imposed upon her. For this reason, the Father’s proposal that he and the Mother have dinner together with the child on one occasion each week appears to be quite unrealistic and unworkable.
The big issue appears to me to be the Father’s claim that the Mother’s ability to parent the child is severely hampered by her mental health. It is not possible to make a finding of fact as to whether the Mother consulted Dr N voluntarily or was bullied into it by the Father, as she claims.
Taking the material subpoenaed from Dr N at its highest, there does not appear to be anything particularly concerning about the psychiatrist’s diagnosis. Dr N’s letter to Dr R, a general practitioner, of 24th June 2013, sets out the diagnosis:
At interview, she was cooperative and socially appropriate. Her mood has been pretty up and down, and she often feels scared. She worries about her parents a lot and there has been a lot of generalised anxiety.
There is no evidence of delusions or hallucinations. She was cognitively fine and retained insight.
My impression was that the patient was suffering from anxiety and depression. She did cut herself in September and October last year, but hasn’t since. She has felt quite isolated and her relationship with her husband remains something of a difficulty.
I have suggested she start on an antidepressant and have prescribed Lexapro 5mg…
There is nothing in Dr N’s letter that suggests that the Mother’s mental health is of such a nature that she presents a danger to either herself or the child.
Similarly, the material produced on subpoena from Mr M, the clinical psychologist, does not raise any concerns about either the Mother’s welfare or the child.
In his letter to Dr N of 10th September 2013, Mr M refers to a referral from Dr N to work on the Mother’s “symptoms of anxiety and stress”. Mr M stated:
On assessment, [Ms Tipper] was given the Depression, Anxiety and Stress Scale (DASS) to complete. She scored 17 on the depression subscale, which puts her in the moderate range for these symptoms. She scored 12 on the anxiety subscale which also put her in the moderate range for these symptoms and, she scored 17 on the stress subscale which put her at the upper end of the mild range for these symptoms.
Mr M then went on to say:
Much of our early therapeutic work together has involved: emotion regulation strategies, cognitive diffusion, cognitive restructuring and exploring interpersonal skills in relation to relating to members of her family. Due to [Ms Tipper]’s apparent low levels of confidence and self-esteem, increasing her levels of interpersonal communication and assertiveness may take some time. I believe she may benefit from further sessions.
The subpoenaed material from Mr M also includes a copy of a letter he sent to Dr N dated 20th January 2014. Mr M said:
Our current work is concentrating on [Ms Tipper]’s interpersonal skills, as these continue to be a challenge to her. The two aspects of interpersonal functions which are most challenging are firstly: [Ms Tipper] working out what she would like to achieve in an interpersonal interaction and secondly how to go about achieving that assertively while maintaining rapport. As I have not seen [Ms Tipper] for a number of months, I now deem her current treatment cycle to be completed. She is of course free to resume treatment at any time in the future if she so chooses after conferring with yourself.
There is nothing in the material subpoenaed from Mr M, the clinical psychologist, to lead to any concerns that there is an unacceptable risk of harm to the child, either from self-harmful behaviour or from neglect, at the hands of the mother.
At the request of the Independent Children’s Lawyer, the Mother also obtained an affidavit from her current general practitioner, Dr K. In a report annexed to the affidavit, Dr K stated that the Mother has been in good general health leading to June 2013, when her medical records were transferred to another medical centre. Dr K went on to say:
[Ms Tipper] attended my practice on 31/3/2014 again. She was very upset and emotional and told me that her husband does not allow access to her approx. 2 yrs. old child. She was emotional as she talked about her child through the consultation. She told me about the consultation with Dr N a Psychiatrist who had seen her and had prescribed the Lexapro and Solian. [Ms Tipper] said this consultation was without her consent but she did take the medicines as prescribed. The medications had caused her side effects….
[Ms Tipper] was obviously disturbed and missing her child but was not showing but was not showing any signs of Depression at this stage either. She had been working at her job.
On later consultations she told me she is able to meet her son but it was restricted access.
When I last saw her on 14/7/2014 in this practice, [Ms Tipper] seemed well and did not show any obvious signs of depression or anxiety. She appeared psychological[9] happier as she was able to meet her son often, though still restricted.
[9] sic
It is noteworthy that 14th July 2014, the date when the Mother last saw Dr K, was the date that the Application was before the Court.
Dr K’s evidence supports the mother’s case that she is not hampered by her mental health in caring for her child.
There are additional considerations in s.60CC(3) of the Act, some of which have already been referred to. Paragraph 60CC(3)(a) refers to any views expressed by the child and the weight that should be given to those views. At 2 years and 8 months, this little boy is too young for his views to be given any weight at all, even if they were known. Of course, one way for the Court to inform itself of views expressed by a child is to make an order under s.68L for the child’s interests to be independently represented by a lawyer, which I have done (see subsection 60CD(2)). Even so, [X] is still only 2 years and 8 months old.
The child has a relationship with each of his parents and with his maternal grandparents. The paternal grandparents live in [country omitted][10] and the Father currently lives with his cousins, some of whom attended Court with him.
[10] Affidavit of Mr Todd 3.7.2014 at paragraph [40]
The child is not yet three years of age. He is a little boy whose parents have a [omitted] background, although his mother was actually born in Sydney (s.60CC(3)(g)).
The above matter should be taken into account when considering, under s.60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on him of any separation from:
a)either of his parents; or
b)any other person (including any grandparent or other relative) with whom he has been living.
This consideration is also bound up with the matters referred to in s.60CC(3)(f), the capacity of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including his emotional and intellectual needs.
The Father is of the view that he is so capable, and he has not been working for over a year, which means that he has been able to care for the child on a full-time basis. There is no evidence from the Mother that the child has been neglected whilst in the care of his father.
The Father deposes in his affidavit at paragraphs [6] to [13] that he has some criticisms of the Mother’s ability to care for the child, leaving aside his concerns about the mother’s mental state.
The Mother’s parents depose in their affidavits about their positive relationships with the child and their capacity to look after him as well as assist their daughter to do so.
The Father is living with some cousins. They are not on affidavit, so their ability to assist the Father with the care of the child is unknown.
The Independent Children’s Lawyer does not support a change in the child’s residence arrangements prior to a final hearing, although she has submitted that overnight time one day a week should commence immediately.
The Mother submits that the child should start living with her. The Mother’s proposed arrangements for the child to spend time with the Father are somewhat ungenerous, in my view, as she seeks an order that the Father only spend time with the child:
a)on Saturday of each week from 9:00am to 6:00pm;
b)on the Father’s birthday; and
c)on Father’s Day.
This arrangement would not appear to be in the best interests of a child who, for whatever reason, has spent most of his time since the middle of March this year in the care of his father, without any overnight time with his mother.
The Father’s proposal would involve a reduction of the time that the child is currently spending with the Mother. This would not seem to be in the child’s best interests, as it would not assist him to develop or maintain a meaningful relationship with her. It is hard to fathom what the point would be of the Father’s suggested that the Mother and Father and child should all have dinner together one evening per week.
Equal Shared Parental Responsibility and Section 61DA of the Act
The Court is required by Goode & Goode 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.
In this case, there is no issue between the parties that they should have equal shared parental responsibility for the child. The mother seeks that order in her Application in a Case and the father seeks a similar order in his Response. The Independent Children’s Lawyer also suggests that this Order would be appropriate in her Minute of proposed Orders.
I intend to order that the parties should have equal shared parental responsibility for the child until further order.
Equal Time or Substantial and Significant Time – Section 65DAA
The Court is required to consider whether, under the provisions of subsection 65DAA(1) of the Act, it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent. The short answer is that it would not be neither in his best interests nor reasonably practicable. The parties’ communication is poor and such an arrangement would be unlikely to work.
The arrangements proposed by each party would not amount to substantial and significant time with the other party. The arrangement proposed by the Independent Children’s Lawyer comes closer to the definition in s.65DAA(3) but still falls short, in my view.
Orders that are in the Child’s best Interests
The orders proposed by the Mother and Father are diametrically opposed to each other, and neither proposal appears to me to be in the child’s best interests.
The Mother’s proposal to change the residence of the child from the Father to her own household appears to offer a significant change to the arrangements that have been in force since March, which have seen this child living mainly in the care of his father with no overnight time with his mother at all. Such a change could well be difficult and distressing for a young child.
The Father during the course of the hearing came up with the proposal that overnight time with the Mother could be considered once the Mother had undergone a psychological evaluation as to her suitability. What for? The Father may well have views that the Mother’s mental health makes it difficult to have overnight time with the child, but this view is not borne out by the material produced on subpoena from Dr N the psychiatrist, Mr M the clinical psychologist or Dr K the general practitioner. Mr M had already deemed the Mother’s course of treatment to have been completed.
This evidence is important, in my view, because it is independent, at least so far as Dr N and Mr M are concerned. Dr K’s recent affidavit accords with the evidence of Dr N and Mr M. These medical professionals do not have any axe to grind and I place a great deal of weight on their views.
The Mother has claimed that she was forced by the Father into consulting Dr N, and it was Dr N who referred her to Mr M. However, what their evidence shows is that the Mother suffered from depression, anxiety and stress. This is hardly surprising in the context of a woman in a deteriorating marital situation which had already led to the imposition of a family violence order.
Neither Dr N nor Mr M expressed the view that the Mother was at risk of self-harm or at risk of harming her child. Dr K’s report shows the Mother as being “upset and emotional” on 31st March, which again is hardly surprising. The parties had only separated less than three weeks before and the child was being retained by the Father. She had seen the child on one occasion, namely 19th March. She had only recently commenced Court proceedings to seek parenting orders.
It is not a matter of wonder that the Mother should have been in a distressed emotional state when she saw Dr K on 31 March. It is also noteworthy that Dr K had reported the mother to have been in a better emotional state once she had started spending limited time with the child.
The Mother has been spending time with the child since orders were made on 16th June and 14th July this year. The Father has not brought any evidence to show that the child has somehow suffered as a result of spending time with his mother on a regular basis.
There are still some areas that will require determination at a final hearing, such as which parent was in fact this little boy’s primary caregiver. The Family Report which has recently been ordered will no doubt be of great assistance.
Like the Independent Children’s Lawyer, I am not persuaded that the evidence to date justifies such a serious step as removing the child from the care of the Father and placing him in the care of the Mother. However, I am satisfied that the ICL is correct in submitting that overnight time for the child with his mother is in this child’s best interests, and it can start immediately.
I am also of the view that it would be beneficial for this child for his time with his mother to increase on a graduated basis, as the ICL suggests. However, I am also convinced that there should be a third stage to this graduated program. The ICL proposes that the second stage of the arrangement should involve the child spending time with the mother on a weekend from 10:00am on Saturday until 6:00pm on Sunday.
I consider that there should be a third stage to the proposed arrangement. By January, the child should have become used to spending time with his mother for an entire weekend, so the obvious next stage would be for the child to move to spending two nights a weekend with his mother. True it is that the Mother is in full-time employment, but she may well be able to make arrangements with her employer to finish early on a Friday afternoon so that she could collect the child by 5:00pm.
Noting that the Mother is in full-time employment, I consider that if the Monday following the weekend is a public holiday, as will be the case on Australia Day and Easter Monday in 2015, then the Mother’s time with the child should extend until 6:00pm on the Monday.
The Father’s solicitor has raised the objection to the ICL’s proposal for the mother to spend time with the child each weekend that the Father will not have the opportunity to spend time with the child on a weekend. I am not persuaded by that argument. The Father is not employed. He is at home seven days a week. There is no particular activities that are of significance to a child below school age that need to be done on a weekend, certainly not on the evidence before the Court.
There is one other matter that I raised with the parties at the hearing. The Father has completed a form for the child’s Day Care that gives his contact details but not those of the mother. The Mother’s contact details should be on the record at the Day Care Centre and I will order accordingly.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 26 September 2014
Key Legal Topics
Areas of Law
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Family Law
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