Wilkinson and Fanning

[2008] FamCA 1153

FAMILY COURT OF AUSTRALIA

WILKINSON & FANNING [2008] FamCA 1153

FAMILY LAW – CHILDREN – INTERIM – with whom the child should live pending outcome of final proceedings – whether the child should spend time with the other parent pending outcome of final proceedings – where the child has been living with the mother – where the father had supervised time from January to June this year and has had no contact since – where the professional supervisor has refused the father to use their services

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilkinson

RESPONDENT: Ms Fanning

INDEPENDENT CHILDREN’S LAWYER: Mr Gill

FILE NUMBER: CAC 1857 of 2007

DATE DELIVERED: 12 December 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Macpherson

SOLICITOR FOR THE RESPONDENT: Mrs Evans

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Perkins

Orders

1. The child will spend time with her father if it can be properly arranged on a professionally supervised basis for two hours each fortnight the first of such fortnights to commence when such supervision arrangements can be undertaken and approved of by the Independent Children’s Lawyer.

2. I note that the Chief Executive has offered to provide assistance to the father to locate the availability of appropriate supervision services but is unable to assist financially in the provision of such supervision.

3. The time for supervision and the days in which the supervised time with the child occur will in large measure be determined by the availability of time within the supervisory institution but there is liberty to apply if there is some significant difficulty associated with agreement about the time that is to happen.

4. The principal proceedings are adjourned to not before 11:30am on 30 January 2009 to enable the Chief Executive of the Office of Children, Youth and Family Support to have notified to the parties and the Independent Children’s Lawyer her attitude to intervention in the proceedings or to the undertaking of other proceedings in other Courts. In this regard I note that there have been previous notifications and no recent notifications to the Chief Executive but that I have continued to seek the intervention of the Chief Executive with a view to cooperative activity under the Children and Young People Act 2008 with this Court.

5. If the Chief Executive does not undertake proceedings in her own right then I would expect the parties to be in a position to make their final addresses to me on 30 January 2009.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CA 1857 C of 2007

MR WILKINSON

Applicant

And

MS FANNING

Respondent

REASONS FOR JUDGMENT

Introduction  

1. In relation to the interim application that is, an application in a case filed by the father on 5 September 2008, I deliver the following judgment.

2. The application filed by the father at that point sought that, until final hearing, the father have unsupervised contact with the child "between" (which is in inverted commas for some reason in the application) between Friday 4pm and Tuesday 4 pm each fortnight starting on the Fathers’ Day weekend, Friday 5 September 2008.

3. He sought that hand-over occur at M Centre if that service is available or alternatively hand over to occur in the garden area of the Federal Magistrates Court.

4. The material in support is necessarily brief and simply asserts that the father has not been able to spend any time with the child in recent times.  There is no substantial argument about that fact.  His evidence, to the extent that it constitutes evidence, is really a letter to the Independent Children's Lawyer setting out the fact that his review of the evidence suggests that there is nothing that would prevent the child enjoying time with him on an unsupervised basis and pointing out there were difficulties associated with supervision.

Background

1. The father is somewhat unrealistic about this matter.  He has been aggrieved by his inability to have unsupervised time with the child for some time and has repeated, on a number of occasions, an application to seek such time pending the final hearing.  In some cases that has been resisted by me and withdrawn by the father on the basis that the final hearing was winding its way to a conclusion and not much would be served by hearing an interim application before that time.  I do not pretend those were the only reasons advanced but that is a short hand way of describing it.

2. The interim proceedings, I had indicated (when it was listed for hearing shortly before the finalisation of the matter) could not proceed without there being proper evidence before the Court.  The final hearing of the evidence was to be dealt with within a week, I think it was, of the listing of the matter for an interim hearing and it was agreed with the father that I would postpone giving any decision on the interim matter until the end of the final matter. 

3. It was agreed further that if my decision in the matter were to be delayed and reserved, that I would give a judgment in relation to the interim matter at the end of the evidence in the finalisation so that any delay would not necessarily impinge upon the father’s time with the child, if for him to have such time were the proper result of the interim application. 

4. At the conclusion of the evidence in the finalisation, the Independent Children's Lawyer sought that I make an order, which I did in fact make, seeking the intervention of the Chief Executive of the Office of Children, Youth and Family Support and I adjourned the matter to this day, 12 December, for the purposes of ascertaining the Chief Executive's attitude. 

5. Reasonably, of course, the Chief Executive has not been in a position, as yet, to make a determination about what she would do in relation to this matter and there must necessarily be an adjournment, which I have indicated will, all other things being equal, take it to 30 January 2008.

6. I also indicated at the completion of the evidence when it was last before the Court that, although I would deliver a formal judgment this day, my preliminary view should be made known to the parties at that point so that any relevant inquiries might be made on the part of the father.

7. I said that, on the basis of the evidence I had heard in the final proceedings, I would conclude that there would not be a change to the existing orders which facilitate supervised time for the child with her father, and I would not be making any order for unsupervised time pending the finalisation proceedings before the Court.

8. My recollection, (although it may well be faulty in this regard) is that the father was uninterested in pursuing the question of supervised time at least in a formal context and that may or may not explain his absence from Court today[1].  However, my resolve in this matter has not changed since the matter was last before the Court.

   [1]The father arrived before the end of the delivery of the judgment.

9. In determining, even on an interim basis, any order about a child, I am obliged to take account of the scheme that has been developed under Part VII of the Family Law Act 1975 as a result of the amendments which took effect on 1 July 2006.

Equal shared parental responsibility

1. The determination as to whether there should be equal shared parental responsibility, which is a primary matter for consideration, needs but short mention in these proceedings.  There is no basis upon which I can reasonably change the view that I have expressed now for some time, that there is no way that the parents in this matter can equally share parental responsibility for the child.  The level and extent of their conflict, the derision (and I use that word advisedly) with which the father both regards the mother and in fact treats her, is such that shared parental responsibility is not possible and I have no difficulty in saying that the presumption in favour of equal shared parental responsibility is rebutted.

2. That precludes, as a formality, my having to consider the question of equal time or substantial and significant time although, again, without wanting to pre-empt any other matter, it is quite clear, from the circumstances of the parties as I am now aware of them in relation to the substantive proceedings, that it is not feasible for these parents to share, substantially and significantly or equally, the time that the child spends with them.

3. I might add that is not an order that either of the parents seeks so that is not really a matter that is a matter that should detain me long in any event.

Best interests of the child

1. Any order that I make about the child, whether on an interim or final basis, must be determined in accordance with her best interests and the Act provides guidance for me in relation to that matter in s 60CC. 

2. The primary considerations in my determination about what is in the child’s best interests are the benefit to her in having a meaningful relationship with both parents and the need to protect her from physical or psychological harm.  I deal with the second of these first. 

3. There have been matters raised during the course of the final proceedings in particular, which throw doubt, it is submitted by the father at least, on the ability of the mother properly to provide day-to-day and long-term care for the child.  Equally the father has had such little time with the child over a long period that it would be difficult to see how he could, even in the short term at least, be an appropriate principal parent for the child until the matters that are currently still to be determined, have been determined.

4. I do not regard, on the basis of all of the evidence before me at this point, that there is any immediate risk to the child in remaining with her mother for the period until the end of January when the matter will resume for final submissions.  I say this for two reasons: one; she has now been with her mother for some time and notwithstanding that fact and notwithstanding apparently some notifications to the Department, there has been no intervention or action taken by the Office of Children, Youth and Family Support up to this time.  That does not mean that there is not a proper basis for some intervention or for some action by the Chief Executive but it does mean that so far as risk is concerned, in my opinion, there is no unacceptable risk in the child’s remaining with her mother in this short period. 

5. On the other hand, in my opinion, there would be significant likelihood of there being some psychological harm to the child if she were abruptly taken from her mother at this point and placed with her father in the intervening period.

6. The relationship that the child has with her mother is, on some evidence, the subject of positive comment.  From others as I have suggested, the comments are not quite so clearly positive.  However, the relationship the child has with her mother is the most meaningful relationship she has at the present time.  Whether that relationship is a benefit to her, within the words of the Act, is a matter for determination and for the consideration of the Chief Executive Officer. 

7. On the other end of the scale, the relationship that the child has so far had with her father has not, in substance, been a meaningful relationship so far and the benefit to her in having a future meaningful relationship with her father is a matter still for determination.  Neither of those matters assists me particularly on an interim basis.

8. The additional considerations involve some of the following: 

9. I make no comment about the child’s views.  She is too young for those views, even if expressed, to be given any weight. 

10. I have made comments already about the nature of the relationship with the child with each of the parents. 

11. Neither parent, in my opinion, is willing or able to encourage a close and continuing relationship between the child and the other parent.  That has been effectively demonstrated to me over a long period and I do not make any determination at this point in either direction based on that point. 

12. If the child were to be separated in any way from her mother and placed with her father in unsupervised circumstances on an interim basis, in my opinion that is likely to have an adverse effect on her.  I base this on the evidence of the parties so far in the proceedings.  That does not mean that that will be the final determination but it does mean on an interim basis, any change to the existing orders, which have not in fact been able to be implemented by the father, for practical reasons at least, would be uncalled for and inappropriate in the circumstances.  

13. There are certainly difficulties and expense associated with supervised time for the child with her father; however these are factors beyond my control and merely reflect on the dangers and difficulties associated with this matter.

14. I have provided comments already about the capacity of each of the parents and in particular the ability of either to provide for the emotional and intellectual needs of the child.  I say this only by amplification that the father's evidence, in the latter stage of the finalisation of proceedings, gave me no comfort whatsoever about his ability to either understand what the child’s emotional needs were or to, in any way, satisfy those emotional needs if they were to become known to him.

15. Matters relating to cultural background and aboriginality are not relevant. 

16. The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents illustrates that, depending on the final view of the evidence, each would say the other has behaved irresponsibly.  I am not satisfied that that is a significant factor in relation to interim arrangements. 

17. Family violence is a question, a serious question before the Court.  The potential for the child being exposed to violence, if there were to be unsupervised time for the father with her, is increased, although not in my opinion significantly so, on an interim basis.

Conclusion

1. Those are the matters that I take into account.  There is no reason in the current circumstances, as I suggested on the previous occasion, to alter the nature of the existing orders.  However, I will repeat them in a form which would provide an opportunity for the father to obtain other supervised time with the child if he chooses to do so pending the finalisation of proceedings.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date: