Woodruff and Woodruff
[2014] FCCA 3067
•3 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOODRUFF & WOODRUFF | [2014] FCCA 3067 |
| Catchwords: PRACTICE AND PROCEDURE – Transfer of proceedings to Wollongong Registry. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA Federal Circuit Court Rules 2001, r.8.01 |
| Cases cited: Goode & Goode [2006] FamCA 1346: (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR WOODRUFF |
| Respondent: | MS WOODRUFF |
| File Number: | CAC 86 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 3 December 2014 |
| Date of Last Submission: | 3 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondents: | Ms Brooks (as agent) |
| Solicitors for the Respondents: | Legal Solutions (Southern Highlands) Pty Ltd |
| Solicitor for the Independent Children's Lawyer: | Ms Nessworthy (as agent) |
| Solicitors for the Independent Children's Lawyer: | Verekers Wollongong Lawyers |
ORDERS
UNTIL FURTHER ORDER
The parties are to have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2003.
The children X and Y are to live with the Applicant father.
The child X is to spend time with the Respondent Mother in accordance with her wishes.
The child Y is to spend supervised time with the Mother as follows:
(a)Each Wednesday from 4:00 pm until 5:00 pm in school terms and during the school holidays and on Christmas Day and on New Year’s Day between the hours of 4:00 pm and 5:00 pm or such other time as the parties agree; and
(b)At other times as agreed in consultation with the child and subject to her wishes.
During periods of time between Y and her mother a family member, or person agreed to between the parties, is to be present when she spends time with her mother.
The Court Notes that the following persons have been agreed:
(a)Ms A;
(b)Ms D;
(c)Ms M;
(d)Ms P;
(e)Ms R.
The children are to have liberal telephone communication with their mother be able to communicate with their mother whenever express a wish to do so.
The parties are restrained by injunction from discussing these proceedings with the children or showing the children any Court documents.
The parties are restrained from making any derogatory comment about the other parent in the presence or hearing of the children or either of them or in a manner which makes either child aware of such comment.
The children are to continue counselling for as long as required with their psychologist Ms S.
The parties and the children are to attend a Child Inclusive Child Dispute Conference with a Family Consultant at 9:00 am on 23 December 2014.
The parents are to engage with Relationships Australia or Unifam to assist in attending for family therapy or counselling as recommended.
The Independent Children’s Lawyer is granted to leave to issue a further five (5) subpoenas without charge and is to have leave to photocopy the material produced on subpoena.
AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER
The father is to do all things necessary so as to cause the child X born (omitted) 2001 to attend therapeutic counselling with a view for her to be reintroduced to her mother with Ms G on 10 December 2014 or at any time on 11 December 2014 at the office of Ms G at (omitted) and do all things as directed and requested by her.
In the event that Ms G is of the view that the child Y born (omitted) 2003 should also attend, the father is to do all such acts and things necessary so that this to occur;
The father is to meet the costs associated with the counselling with Ms G in the first instance.
AND IT IS FURTHER ORDERED THAT
The Application is transferred to the Wollongong Registry of the Court to be listed before a Judge on the first available date.
IT IS NOTED that publication of this judgment under the pseudonym Woodruff & Woodruff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CAC 86 of 2014
| MR WOODRUFF |
Applicant
And
| MS WOODRUFF |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders in respect of the parties’ two daughters, X, aged 13, and Y, aged 11 years. The children are presently living with their father, the Applicant.
An order was made on 3 November 2014 that the children’s interests should be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 (Cth), and the Independent Children’s Lawyer has proposed some interim parenting orders to which the father agrees but the mother does not.
The parties have consented to some orders providing that the elder child, X, is to attend therapeutic counselling with a Ms G, in (omitted), with the proviso that if Ms G is of the view that the younger child, Y, should also attend, then this should occur. The father agrees that he will meet the costs of this counselling in the first instance.
Background
The mother was born on (omitted) 1972.
The father was born on (omitted) 1973.
The parties were married on (omitted) 1996.
The parties’ first child, X, was born on (omitted) 2001. Their second child, Y, was born on (omitted) 2003.
The parties initially separated in January 2010 but resumed cohabitation towards the end of that year.
They separated finally in January 2011.
The parties initially agreed that the children would live with their mother and spend each weekend, except the first weekend of the month, and the school holidays, with their father. This arrangement persisted until November 2013.
In December 2013 the parties commenced an arrangement whereby the children spent equal time with each parent. The mother terminated the arrangement on 9 March 2014 but resumed the arrangement on 17 March.
The parties were divorced by order of this Court at the Canberra Registry on 7 March 2014.
After an incident between the two girls and their mother on 6 August 2014, the father collected the children from their school on the following day and refused to return them to the mother’s care.
The mother was admitted as a voluntary patient to the mental health unit of (omitted) Hospital on 8 August and remained there for a week.
On 12 August 2014 the father commenced proceedings in this Court by filing an Initiating Application supported by an affidavit. In his Application he sought interim and final orders that the parties’ two daughters should live with him and spend time with their mother as and when they wished, in the presence of another family member.
The Application was returnable on 3 November 2014. On that date, the Court made Orders that:
a)the parties were to attend a Child Dispute Conference with a Family Consultant;
b)an Independent Children’s Lawyer was appointed; and
c)the Application was listed for an Interim Hearing on 3 December 2014.
The parties attended the Child Dispute Conference on 20 November 2014.
Orders Sought by the Parties
The Independent Children’s Lawyer proposed interim orders that:
a)The parties should have equal shared parental responsibility for the children;
b)The children should live with the father;
c)The elder child X should spend time with her mother according to her wishes;
d)The younger child Y should spend supervised time with her mother for an hour each Wednesday and at other times subject to her wishes;
e)A family member or another agreed person should be present when Y spends time with her mother;
f)The children should have liberal telephone communication with their mother;
g)The parties should be restrained from discussing the proceedings with the children or from derogatory comments about each other;
h)The children should continue to attend counselling with a psychologist called Ms S;
i)The parties should engage with either Relationships Australia or Unifam; and
j)The parents and the children attend a Child Inclusive Child Dispute Conference.
The father decided that he would agree to those proposed orders, but the mother did not.
The issues in dispute
The Child Dispute Conference memorandum of 20 November 2014 sets out in some detail the issues in dispute between the parties, which include allegations of family violence and allegations of mental health issues.
The father claimed that the children had complained to him about their mother’s behaviour when she was angry and it was their expressed fear that led him to remove the children from her care. He also alleged that the mother had been physically violent towards him during the marriage.
The mother did not claim any issues of physical violence or verbal abuse by the father, saying that they had had an amicable parenting relationship until the father formed a new relationship with his current partner.
The father claims that the mother has always suffered from mood swings and outbursts of erratic behaviour, although the mother denies that she has mental health issues apart from depression. She claims that the father suffered from mood swings during the marriage, which he denies.
The girls are currently refusing to spend any time with their mother. The children were reportedly distressed by the incident of the night of 6 August.
Agreed or uncontested relevant facts
The parties agree that both children are refusing to spend any time with their mother. They each say that the children were distressed as a result of the mother’s behaviour on 6 August.
The relevant law in regard to applications for parenting orders
When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must consider the matters in Part VII of the Family Law Act 1975 (Cth). In particular, the Court should have regard to the provisions of:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or children, in this case) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that is in children’s best interests for their parents to have equal shared parental responsibility for them; and
e)Section 65DAA, which requires the Court to consider equal time or substantial or significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the children.
All of these matters have been considered, where they are relevant.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court in Goode & Goode[1] held that a court at first instance must 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.[2]
[1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[2] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]; FLC 93-286 at 80,903 [82]
There is some difference between the parties on a number of factual issues. As the Full Court stated at [68]:
Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
There is in this case a tension between the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the children of having a meaningful relationship with both of their parents and, on the other, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The Court is required by subsection 60CC(2A) to place greater weight on the latter consideration.
As the Independent Children’s Lawyer has submitted, the father claims that the children are at risk of harm in the care of their mother due to her mental health issues, including the children’s fear that the mother may harm herself.
The additional considerations are to be found in subsection 60CC(3).
The Court is required to consider the views expressed by the children and any factors such as the children’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the children’s views.
The children here are expressing firm views that they wish to stay with their father and spend little or no time with their mother because of her behaviour. The children are aged 13 years and seven months and 11 years and seven months, so their views should be given a fair degree of weight.
The children appear to have a good relationship with their father but a poor relationship with their mother, verging on alienation in the case of the older child.
Whilst there are allegations of family violence, there is no family violence order in force.
Any significant change in the children’s circumstances would have an effect on them.
When considering the practical difficulty and expense associated with the children spending time or communicating with their mother, it is significant that the parties live within about five minutes’ drive from each other and the children’s school is also within about five minutes’ drive from each parent’s home.
The father has a concern that the mother does not have sufficient capacity to care for the children’s needs, because he believes that she is not mentally well enough to care for them until she obtains professional help. He is fearful that her irrational and angry behaviour will affect the children.
Section 61DA of the Act - equal shared parental responsibility
The Independent Children’s Lawyer recommends, and the father agrees, that the parties should have equal shared parental responsibility for the children. The mother’s Response seeks no order about parental responsibility.
Subsection 61DA(3) of the Family Law Act 1975 provides that where the Court is making an interim order, the presumption that it is in children’s best interests for their parents to equal shared parental responsibility for them applies, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the interim order.
I do not consider that it would not be appropriate in the circumstances to apply the presumption. I propose to make an order until further order that the parties should have equal shared parental responsibility for the children. I note that s.61DB of the Act provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. Consequently, when final parenting orders are to be made, the Court will consider the question of parental responsibility afresh.
Section 65DAA of the Family Law Act
In this case, where the children are expressing considerable reluctance, and indeed downright opposition in the case of the older child, to spending time with their mother, I am not satisfied that it is either in the children’s best interests to spend equal time with each parent or to spend substantial and significant time with their mother.
Orders that are in the children’s best interests
It appears to me that the best interests of the children require orders to be made along the lines proposed by the Independent Children’s Lawyer, with the father’s consent.
I have given some though to the matter and I note that there have been concerns raised by the Applicant father in respect of the welfare of the children. The evidence relating to the older child, X, and her apparently quite rigid opposition to spending time with her mother at this stage is disturbing. Indeed, those issues were what prompted the appointment of the Independent Children’s Lawyer in the first place. It does seem to me to be appropriate that the door should be open for X to communicate with her mother and that there should, in fact, be a structure in place, imposed by the Court, for Y to spend time with her mother, noting her views in this regard.
On considering the arrangements proposed by the Independent Children’s Lawyer, it seems to me, noting the time of the year, that the weekly arrangement is capable of modification. I would propose, in respect of the wording of the proposed Order 4(a), which refers to Wednesdays, to add the words “and on Christmas Day and on New Year’s Day between the hours of 4:00 pm and 5:00 pm or such other time as the parties agree”.
Is there a need for a responsible adult to be present when Y is spending time with her mother, as set out in proposed Order 5? I prefer to take the cautious approach at this stage and make that requirement. I have been provided with a list of five people, being Ms A, Ms D, Ms M, Ms P and Ms R, being people suggested by the mother as being suitable.
There is no objection by the father to any of those people. One other person was the subject of an objection and I decided to consider that person no further. It would seem to me that a choice of five people should enable reasonable flexibility, especially at times where there might be a bit of a social demand.
Transfer of Proceedings
This is a matter where I believe that the interests of both parties and the children would be better served by the ongoing proceedings taking place at the Wollongong Registry of the Court, noting where the parties live and noting where the Independent Children’s Lawyer carries on her practice (rule 8.01).
I propose to transfer the matter to the Wollongong Registry to be listed at the Court on the first available day, but that will be a matter to be decided by his Honour Judge Altobelli, who will be there.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 20 January 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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