Yarris and Cassell - [2009] FMCAfam 1446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YARRIS & CASSELL

[2009] FMCAfam 1446

FAMILY LAW – Child aged nine months – interim arrangements for child’s care – presumption of equal shared parental responsibility – appropriateness of equal time regime – age of child – consideration of s.60CC factors – best interests.

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

Applicant:

MS YARRIS

Respondent:

MR CASSELL

File Number:

ADC 3594 of 2009

Judgment of:

Brown FM

Hearing date:

26 November 2009

Date of Last Submission:

26 November 2009

Delivered at:

Adelaide

Delivered on:

26 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr G. Noble

Solicitors for the Applicant:

Nicholls Gervasi & Co

Counsel for the Respondent:

Ms J Schirripa

Solicitors for the Respondent:

Legal Services Commission

ORDERS

The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the child and, at the discretion of the family consultant, observed interaction of the child with any relevant adult person in addition to the parties as the assessor considers appropriate, including home visits, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
The matter is fixed for final hearing before Federal Magistrate Brown on 17 & 18 May 2010 at 10:00am NOTING 2 day allowed.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof on or before close of Registry filing on 12 April 2010.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 19 April 2010.
The respondent file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 3 May 2010.
The child [X] born [in] 2009 live with the mother
The father spend time with the child each Monday and Wednesday between 10:00am and 1:00pm and each Saturday between 10:00am and 3:00pm
The parties exchange the child at a location to be agreed between them and failing agreement to be at the [omitted] shopping centre.
The father spend time with the said child on Christmas Day between the hours of 10:00am and 2:00pm and on the child’s birthday [date omitted] 2010 between the hours of 10:00am and 2:00pm.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3594 of 2009

MS YARRIS

Applicant

And

MR CASSELL

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally immediately following the interim hearing. At the request of the father, they have been transcribed.
This morning, I have to deal with interim parenting arrangements for a very young child. The child is [X], who was born [in] 2009 so [X] is nine months of age.
The parties to the proceeds are [X]’s parents, his mother Ms Yarris and his father, Mr Cassell.
When I say I am deciding the proceedings on an interim basis, this is what I mean. Today I have not heard any evidence directly from either of the parties. I have not seen either of them in the witness box. More importantly, I have not seen either of them being asked questions which they may find it difficult to answer.
I have not heard a single word from either of the parties’ mouths. Rather, I have only read what each of them have said in their affidavit material. As a result, I cannot resolve the truth or otherwise of many of the things each has said about the other. There are many disputes in this case.
The court case, the big court case, which will resolve these disputes, must be, at some stage in the future. That will be the major court case where each of the parties will go into the witness box and be cross-examined.
At that stage, I will look at each of them in the witness box, being placed under pressure, and I will decide, who of the parties is the more objective and the more likely to be telling the truth.
Unfortunately that cannot happen today because there is insufficient time available today. The court will have to put aside two, possibly three days, for that major court case to take place.
The other thing, at this stage, is that there is a lot of evidence that I need to make a final decision about [X], which I do not have available to me today.
The most important piece of evidence is almost certainly some independent assessment from somebody who has not got an axe to grind, about what sort of parents the parties are. This assessment may involve the expert going into the parties’ home, see how they change nappies and the like and respond to [X] when he’s upset or whatever and reporting back.
I am going to order today that such a report be prepared by a psychologist who will interview each of the parties and see [X] interacting with each of his parents. But again, for obvious reasons that cannot happen instantly. It will have to be arranged and most probably it will take some months for it to be arranged.
However, regardless of the state of evidence a decision still has to be made in respect of arrangements for [X]’s care because sadly Ms Yarris and Mr Cassell are in a vehement dispute about what is likely to be best for [X]. Accordingly an interim or provisional decision needs to be made by the court, which will be in place, most likely, until the major court case, when the final decision will be made.
The same principles of law apply to the making of an interim decision as a final decision, the difference being that the interim decision is provisional and very often has to be made against a background of urgency, when all the necessary evidence is not to hand.
In addition, it is commonly the case that everyone, at the interim stage, is very upset. I point out that Ms Yarris is crying and Mr Cassell, with respect, does not look very happy. I know how traumatic this case is for you both. I have to be careful not to let my decision making be influenced by any atmosphere of hysteria.
My primary responsibility, in determining this case, is to do what I think is best and will be best for [X] and in his best interests. That is that fundamental principle.
In doing so, I have to bear in mind the objects and principles of the Family Law Act and in particular I should make orders that ensure that both of [X]’s parents are involved, as much as possible, in his life, commensurate with his best interests. I have also to ensure that, as far as possible, [X] will be protected from family violence, neglect or abuse.
The starting point for any parenting order is that I am required to consider whether the parties should have what is called equal shared parental responsibility for [X]. The law presumes that this is the best outcome for every child.
If I make an order for equal shared parental responsibility, I am then required to consider the child living with each of you first for equal periods of time and then if I reject that for substantial and significant period of time.
The presumption is rebutted if there is reasonable grounds for me to believe that [X] has been exposed to family violence, neglect or abuse; or I consider it would not be in his best interests; or, at this interim stage, if I think it just would not be appropriate for the presumption to be applied.
In determining what is likely to be in [X]’s best interests, I have to look to a long list of matters in section 60CC of the Family Law Act. There are two types of matters I have to consider.
The first lot are the primary, or more important considerations, and they are ensuring that [X] has a meaningful relation with each of his parents and also ensuring that he is protected from harm, particularly the harm represented by neglect, abuse or family violence.
The additional considerations are more numerous. I won’t go through all of them at this stage, but in a case like this one, the important ones are likely to be how each of the parties has exhibited insight into the responsibilities to being a parent; the consequences of any change in [X]’s circumstances; and also very importantly I have to look at his age and likely level of development.
Although one of the principles of the Family Law Act is that children do best if both their parents are involved in providing care for their child, there is no principle that one size of orders, so to speak, fits every family.
Clearly, the age and level of development of a child is something I must bear in mind, in determining what is the best outcome and really, I think that is the most important consideration in this case.
I have already had some discussions with the lawyers about that. [X] is a baby, who of cause is very vulnerable and dependent. Given that state of affairs, I have to pay close attention to the parties’ relationship with one another, which is a very difficult relationship currently.
In this case, I have grave concerns that an equal time arrangement, although it may be the optimal outcome envisaged by the Family Law Act for children, is not likely to be in [X]’s best interests. As I said a moment ago, my fundamental task is to do what I think is best for [X].
I am not here to be fair to each of you. If I was, the easiest arrangement of course, would be that [X] moves between you every

24 hours, or every half hour even, or for some other equal division of time. I don’t know what. But of course that would be silly. I am not here to divide up time, I am here to focus on what is best for [X].
I have read each of the parties’ affidavit material. By way of background I note that both of the parties are fairly young people. I am not critical of them for being young but I suspect each of them has a lot of living to do, and with living comes experience and with experience comes knowledge.
The parties began their relationship at some stage in early 2008. Obviously, that is not very long ago. It seems to be that Ms Yarris fell pregnant fairly early on in the piece.
As I said earlier, I suspect the parties’ relationship was often difficult. It is hardly surprising that it was often difficult because both were young. They became parents at a very early stage and I suspect there were a lot of financial pressures on them because they did not have a lot of money, and that is the sort of thing that leads to a pressure cooker situation where people, and again I mean no disrespect, particularly young people, don’t always behave as well as they would otherwise.
Anyway, at a fairly early stage in their relationship together, [X] was born. It is Ms Yarris’s position that she had to leave the household and the household was a property in [suburb omitted] which is owned by Mr and Mrs C’s parents.
Again, living in a unit owned by your de facto parents-in-law is sometimes also a factor that leads to conflict, but I don’t know for certain, in this case. Anyway, Ms Yarris says she had to leave the family home because Mr Cassell was obsessive, verbally abusive towards her and was denigrating and referred to her as being stupid and not bright.
Whether that’s true or not, I don’t know. It is also her case that in the early stage of [X]’s life Mr Cassell didn’t do much by way of nappy changing, feeding and bathing and she didn’t feel emotionally supported and there was an earlier period of separation between the parents.
She also complains that, after the parties had a separation that

Mr Cassell grabbed [X] away from her. So it’s her case, essentially, that she provided more of the care for [X] than Mr Cassell did and that she felt that she wasn’t supported emotionally in what was a very difficult situation.
Mr Cassell, of course, has a very different view about things. It’s his case that he’s a good father, an insightful father and that it’s the mother who is the more immature one and it is she who had the greater difficulty in adjusting to [X]’s arrival in her life.
It does seem to be that after the parties’ first period of separation [X] lived more with the mother than the father. I say this because

Mr Cassell complains that he found it difficult to spend any meaningful time with [X].
In any event, Ms Yarris is now living with her mother, a lady by the name of Ms Y, and she has a home in [suburb omitted]. Mr Cassell is very critical of Ms Y’s home and home life.
It is his case that the property there is very crowded. He asserts that eight people, I think, live there and there are not enough bedrooms. It is also his position that there is a 10 year old child who causes friction because of his behaviour and, as a result, there are tensions between Ms Y and this child, which lead to violent confrontations. He also has concerns about drug use in the household.
Ms Y has filed an affidavit which refutes these assertions and she says that her household is a loving and caring one. At this stage, I have no way of resolving these significant issues in dispute between the parties.
Mr Cassell continues to live at his parents’ unit. He is not working at present. His mother, a lady by the name of Ms C, has deposed an affidavit. She, as one would imagine, speaks highly of her son’s ability as a homemaker and parent.
She says that Mr Cassell maintains a neat, tidy and clean house and is a hands-on dad and interacts as much as he possibly can with [X], who is described as being placid but easily settled when he cries or is grizzly.
Essentially, the picture Mr Cassell paints of Ms Yarris and those who are associated with her, is that Ms Yarris has struggled to accommodate the responsibilities of parenting and is frequently stressed by those responsibilities. He asserts she cannot cope with them and she has frequently called upon him for help, who in contrast has taken to parenthood like a duck to water.
Again, as one would imagine, the respective relatives of the parties are supportive of their respective children, and again, of course, I haven’t had the opportunity of making my own assessments of the level of insight of Ms C or Ms Y.
But in general terms I would have thought it would be more helpful to a young parent to have access to a parent or an older adult regularly on hand, as it were, than not have such a resource, provided of course such a person was functioning properly.
There seems to have been something of a crisis in September of this year. It is Ms Yarris’s case that, after the parties finally separated, she went to stay at her mother’s home with [X] and arrangements were made for the father to see [X].
The mother says, in effect, that the father later withheld [X] from her. The police were called. They refused to intervene and because the police would not return [X] to one parent over the other, she says, in effect, through force of his will, Mr Cassell took control of [X] in early September.
This state of affairs led to Ms Yarris bringing these proceedings on 14 September. They were made returnable on 23 September. So she has wasted no time in bringing the matter before the court.
The matter came before me on 23 September. The mother was represented by her solicitor and Mr Cassell was represented by Mr Eid, a barrister. At that stage, I think it was my duty list, which more often than not is a very busy day, with all sorts of matters coming before the court for the first time.
Be that as it may, the parties had some discussions with their lawyers and with each other and they reached an agreement that they would share the care of [X] for a short period of time and in the meantime they would meet with a family counsellor, Mr P, to discuss arrangements for [X]’s care and accordingly the proceedings were adjourned until today.
Mr P, a psychologist, was not impressed by what the parties had agreed. He wrote a memorandum to the court. He said as follows:
“It was explained to both parents that an alternate week arrangement was very unsuitable for a child of [X]’s age and that any sort of equal time arrangement was unsuitable for a child when there is a lack of goodwill, trust and mutual cooperation between parents. There is a risk that [X]’s wellbeing and development will be compromised if the current arrangement continues.”
Mr P reported that after the parties received this information, each of them said that they would seek that [X] live primarily with them. Mr P noted that:
“The parties appear to have very limited knowledge of suitable care arrangements for [X].”
And so the matter comes back before me today.
I do not think that the presumption of equal shared parental responsibility should be applied at this stage because each the parties mistrust the other so much because of what has happened in the past between them, particularly in September. I really think that the issue of shared parental responsibility and what follows from it is not an issue that can be determined at this stage.
Ms Yarris has filed another affidavit recently. It is her case that she agreed to the shared care arrangement because she thought it would be fair. She thought it might bring about an easier relationship between her and Mr Cassell. She also says that she had reservations about the arrangement.
But it is also, I think, her case that she is not an assertive person. She is a person who goes with the flow and Mr Cassell, by necessary implication, is, in her perception, something of a forceful person. Accordingly it is her case that Mr Cassell forced the arrangement on her, against her better judgment. Whether that is so or not, I don’t know. Anyway, it is her position that [X], more importantly, is not coping with the arrangement. She says that he is insecure and unsettled, whereas previously he was doing much better, that he was happy and content and sleeping, but now he has a lot of issues. She says he is now unsettled at night. Wakes up constantly and he is not doing well. To be perfectly frank, I am not surprised at that, given his tender years.
As I have indicated throughout these proceedings, I am placed in the invidious situation whereby I have to determine that the child must live with one parent more than the other because of his age primarily and concerns I have that an equal time arrangement simply does not fit with a child of [X]’s tender years.
In making that decision, I have to consider the matters set out in section 60CC of the Family Law Act. Turning to the primary considerations first. I think at this stage of his development [X] can have a meaningful relationship with both his parents through a mechanism other than an equal time arrangement.
I have considered the criticisms that Mr Cassell makes of Ms Yarris’ current household which are, as I say, largely refuted. I do not think there is an unacceptable risk of [X] being exposed to family violence, neglect or abuse in either party’s household. In particular, I don not think there is an unacceptable risk of such things, certainly in Ms Y’s household.
So I must look to the other additional matters set out in section 60CC(3) to determine what is the appropriate outcome. Clearly [X]’s too young to have any view about what’s the best outcome from his point of view.
On balance, I suspect that it is more likely the case than otherwise that [X] has a more significant relationship with his mother than his father, and I say that because it seems to me that [X] has probably spent more time in his mother’s care than his father’s care, up to this stage.
I have to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. In this regard I have grave concerns about both parties, but particularly in terms of what happened in early September, when the father seems to have withheld [X] and caused the mother to bring these proceedings.

I have to consider the likely effect of any changes in [X]’s circumstances, including the likely effect on the child of any separation from either of his or her parents. This is an important consideration.
There has been some brief discussion about attachment theory for infants, during the course of the case. I think I can take some note of the theories of attachment and particularly that it is usually thought preferable for a child to have - when I say a child, I mean an infant - to have a primary attachment to one carer above all others, so that the child have a sense of security that his/her basic need for nurture will be met.
I think it is likely to be deleterious if there are frequent changes in the person who is providing that primary nurture and I think there is a real difficulty, or danger, of [X] having, what is usually categorised as an insecure attachment.
As I say, I think a decision has to be made that the child lives more with one parent than the other. I accept Mr Cassell’s evidence that he is devoted to [X] and wants to be as responsible a parent as possible. However, I am concerned that up to this stage, the level of significant conflict between the parties indicates that each of them, to a certain extent, is putting their own respective emotional needs before the needs of this very young child.
The parties live in, roughly, adjourning suburbs of Adelaide. I don’t disregard the importance of either parent in [X]’s life. Both parties have the potential to be very important, but at this stage I have come to the view that a shared care arrangement, or indeed a substantial and significant care arrangement, is simply not in [X]’s best interests and having considered the matters in section 65DAA(5) is just not practicable.
On balance, I think [X]’s best interests will be served if he lives more predominantly with his mother for the reasons I have given, primarily that it seems to me that she is likely to have provide more of his care up to this stage.
But in terms of his entitlement to have a meaningful relationship with both his parents, [X] needs to see his father regularly and in assessing the type of time I think I really need to concentrate on its quality, what will happen in that time rather than its quantity.
It is regrettable that I have to make these decisions in these emotionally charged circumstances. I do not know fully what [X]’s routine is, but I would imagine he is a child who no doubt has a day time sleep. Whether he has two day time sleeps or not, when he feeds, I am not sure, but, in my view, he needs to see his father regularly, for fairly short periods of time, so that this important secondary attachment can be maintained and secured.
I am going to fix the matter for final hearing. I’ll do that as soon as I can, and as I indicated, I will order that a Family Report be prepared, which will go some way to assessing the parties’ respective parenting capacities and may shed a light on the areas essentially in dispute between them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 26 November 2009