WOODFIELD & BELLAMY

[2013] FamCA 760

FAMILY COURT OF AUSTRALIA

WOODFIELD & BELLAMY [2013] FamCA 760

FAMILY LAW – CHILDREN – Appeal of Local Court decision – hearing de novo - interim orders - best interests - with whom the child shall live and spend time – child shall live with the father – child shall spend time with the mother each alternate weekend - mother and father to have equal shared parental responsibility for the child – child has health concerns requiring urgent surgery

FAMILY LAW – INJUNCTIONS – Parties restrained from changing the child’s current school enrolment

Family Law Act 1975 (Cth) ss 60CC, 65DA

APPLICANT: Ms Woodfield

RESPONDENT:	Mr Bellamy
FILE NUMBER:	NCC	1882	of		2012

DATE DELIVERED: 21 August 2013
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 16 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hannaway Lawyers
Mr Hannaway

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: W J Cuff Solicitors

IT IS ORDERED PENDING FURTHER ORDER:

1. The appeal filed in this Court against the Orders made on 26 July 2013 in the C Town Local Court is dismissed.

2. That the child B born in 2007 shall live with the father.

3. That the mother and father have equal shared parental responsibility for the making of decisions for the long term care, welfare and development of the child.

4. The child shall spend time with the mother each weekend from 10.00am on Saturday until 6.00 pm on Sunday.

5. The mother is to notify the father immediately if she ceases living in her mother’s home.

6. The child have telephone contact with the mother not less than each Wednesday; the call to be initiated between 6.00 pm and 6.30 pm.

7. The parties are to ensure that the child attends her appointment with Dr D, Paediatrician on 10 September 2013.

8. The parties are restrained from changing the enrolment of the child from E Town Public School.

9. Leave is granted to the parties to issue subpoenas as required.

10. The Application for Final and Interim Orders filed in the Federal Circuit Court on 1 August 2013 are transferred to the Family Court of Australia at Newcastle and the appearance before that Court on 16 September 2013 is vacated.

11. That pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

THE COURT NOTES:

(A)The Court Noted that the child is on a waiting list having been referred for urgent surgery for an adenotonsillectomy, and that this surgery is to take place with the consent of both parents.

IT IS NOTED that publication of this judgment by this Court under the pseudonym F & Bellamy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC (P)1882 of 2012

Ms Woodfield

Applicant

And

Mr Bellamy

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by the mother against orders made in the Local Court at C Town on 26 July 2013.  The matter was heard in this Court de novo.  The parties are the parents of one child, B, born in 2007, now six years old.  The father was the applicant in the Local Court proceedings.  I have read his application filed 18 July 2013 together with his supporting affidavit filed on that day plus exhibits 1, 2 and 3, medical reports and orders.  I have also read an affidavit by the father filed in this Court on 15 August 2013.

2. The mother was the respondent in the Local Court.  I have read her response, her notice of appeal, three affidavits filed in the Local Court at C Town, one on 22 July, one on 25 July by the mother and an affidavit of Sharon Foley of 22 July, plus I have read two further affidavits filed in this Court on 7 August and 16 August 2013. 

Short History

1. The father is aged 24, the mother is 26.  The parties lived together between early 2006 and August 2008.  The child was born during that time.  When the parties separated the mother moved away with the child, then aged about 15 months.  The parties enjoyed a co-operative relationship after separation.  The father cared for the child for a period of time when the mother found employment.  Thereafter there was shared care.  The father then found fulltime work between April 2009 and early 2011, during this time the arrangement was something similar to weekdays with the mother and weekends with the father. 

2. In early 2010 the mother married Mr Woodfield.  They had one child, now aged three, who lives with his mother since his parents separated in August last year. 

3. The father’s time with the child became about one weekend per month after the mother’s marriage. 

4. In October 2011 the father and his current partner, Ms G, aged 27, her child and the then two children to their relationship moved to C Town.  Contact between the child and her father became weekly telephone contact and irregular periods when the father was in Sydney.  The child spent three weeks with her father, on his evidence, from 26 December 2012 until 16 January 2013.  The father had no concerns about the child at that time.  He then spent one week of the June/July school holidays just gone with her.  The mother says that the father did not spend three weeks at Christmas time, but only one week, the dates of which she cannot recall.  That will be a matter for the final hearing and has no particular bearing on this application. 

5. After the one week in the June/July school holidays the father kept the child in his care and made the application to the Local Court.  The father became quite quickly concerned about the child’s health.  On 9 July 2013 he took her to see Dr H who assessed the child as underweight with an iron deficiency and leukocytosis.  Dr H refers to “failure to thrive” in relation to the child[1].  In fact, Dr H indicated that she would report the child’s situation to the Department of Family and Community Services (DoCS) on hearing that the child would be returning to her mother’s care after the holiday. 

   [1]Annexure ‘D’ to father’s affidavit

6. Dr H was also concerned about the child’s emotional state and referred her to a clinical psychologist.  The child was seen by Mr I, psychologist, on 24 July 2013[2].  The father noted unusual behaviour from the child, including:

   ·the fact that she would not get out of bed without permission;

   ·she was withdrawn in her speech;

   ·she appeared to be choking over her tonsils;

   ·her hair was infested with lice;  and

   ·she at times played with her own genitals in a way that suggested anxiety. 

   [2]Exhibit ‘C’ 

7. Having seen the doctor and had the referral to the psychologist, the father filed the application for the child to live with him at C Town.  The mother filed a response seeking the child’s return which was unsuccessful. 

8. In her earlier affidavits before the Local Court, the mother referred to working five days or evenings per week, at which time the maternal grandmother cared for both the child and her younger son.  The mother stated that she was not aware that the child was low in iron in her blood, but asserted that now she was aware of it she would take the child to the doctor regularly and have her fully assessed. 

9. There is a lot that the mother did not say in her affidavit.  She referred to having separated from her husband Mr Woodfield, although she did not say when that had happened.  From the Bar table I was told it was in August 2012.  In her affidavit sworn on 22 July the mother says[3]:

   She had some issues with her ex-husband, that he had been harassing her.  She said that [Mr Woodfield] came to her house, that there was an argument, he pushed her over, she hit her head, the police became involved and took out an Apprehended Violence Order restraining [Mr Woodfield] for her protection.

   [3]Affidavit of mother sworn 22/07/2013, par 65

10. Again, from the Bar table I was told, because it was not included in her affidavit, that in April 2013 a final AVO was made for the protection of the mother and members of her household.  The relevant AVO was not tendered into evidence.  In response to a request from me, I was told that the mother now has a boyfriend, although he is not living in the household.  There was no information about this person in the mother’s affidavit material. 

11. It is hard to account for the child’s present distressed, anxious and unhealthy state.  I do not accept the submission on behalf of the mother that the child’s anxiety could only arise from having been removed from the fulltime care of herself. 

12. The material contained in exhibit 1 is especially concerning.  Mr I saw the child on 24 July 2013.  The child was referred to him both because of the health deficiencies that were noted, and also possible risk of harm.  Mr I observed that the child was quiet, she did not appear anxious about her father, but there was a high degree of anxiety exhibited by the child during Mr I’s observations.  She spoke very few words to him.  He did hear the child speaking in the presence of her father in the waiting room and otherwise she exhibited “quiet self talk”.  When engaged in play therapy with the child Mr I questioned her as to whether anyone had hurt her.  The child is said to have positively indicated “to her mother’s house”.  She indicated having fun at both her mother and her father’s houses, but became highly emotional when playing with dolls involving her mother’s house. 

13. Mr I noted that her high level of emotion could indicate many factors and required further consideration.  The child was a pleasant child in his observation, though highly emotional at times, often tearing up and stonewalling his questions.  She indicated that she missed her mother when she was at her father’s house and missed her father when she was at her mother’s house.  Physically, the child appeared to Mr I to be a “sick young girl who was pale and had a persistent cough”.  Mr I expressed a willingness to see the child himself in the short term so as to be able to offer the intervention which is probably necessary.  The child hardly moved from her chair to engage with the therapist but when in the company of her father sat on his lap.

14. I accept that there are conflicts in the evidence about the child.  Her school report and the statements of her maternal grandmother would seem to refer to a healthy child doing well.  The father’s evidence, and the reported evidence of his partner’s observations, together with the observations of the psychologist and the doctor, suggests an anxious young girl with undisclosed difficulties. 

15. The father has four children fulltime in his household.  He is working fulltime.  There have been no previous applications by either of the parties about the parenting arrangements for the child.  However, after the holiday period just gone the father was sufficiently alarmed by the child’s presentation to take her to a doctor and his fears were not dismissed but supported by both the general practitioner and the psychologist. 

16. I will refer briefly to relevant sections of the Family Law Act 1975.

The law

1. 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. A court determines those best interests by considering the factors set out in s 60CC of the Act.

2. In this matter it seems clear that the child does have a meaningful relationship with both her parents.  I accept the evidence of the mother that the child was distressed at having to leave the care of her mother during a weekend spent with her since the child came into her father’s full-time care.

3. Those meaningful relationships with her parents need to be preserved, but there is also a need to protect the child from any physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. 

4. Clearly, I am not in a position to make any findings about that, but there is a period between early January 2013 and June/July 2013 when it seems that the child’s health; both mental and physical, deteriorated and there is no explanation for that on offer. 

5. In relation to the additional considerations, the relevant matters are the relationship between the child and others; she is closely attached to her mother and, presumably, her younger brother; she has three younger sisters aged three, two and one, and a seven-year-old stepsister in her father’s household. 

6. She may feel a little bit lost in a crowd of sisters who she usually only spends holiday time with. 

7. The next matter is that it appears that the mother has failed to meet her obligation to keep the father advised of events in her household which may have had an impact on the child.  The mother has separated from her husband late in 2012, she has a new partner, the police have been involved in her household and there is apparently a final AVO. The child may have been exposed to the events that gave rise to this order.  I do not know.  That, too, would be a matter for a final hearing.

8. There will be some practical difficulties for the parties in the child spending time with her mother, just as there were for the child to spend time with her father, given the distance between them in Sydney and C Town.  However, I am confident that these parties, who have worked well together in the past, will be able to agree on a midpoint and I have left them to determine what the most convenient place is by not making any particular order about it.  The father appears to be committed to addressing the health concerns for the child.  All of the evidence is untested.  I certainly do not find that there is an unacceptable risk in the care of the mother. 

9. The particular circumstances are such that the evidence at this stage suggests that the child is likely to have her present physical, medical and emotional needs met in the day-to-day care of her father.  Orders have accordingly been made for the parents to share parental responsibility, for the child to live with her father and to spend time with her mother on alternate weekends and orders have been made accordingly. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 21 August 2013.

Associate:

Date:  11 September 2013