Yeomann and Cole

[2014] FCCA 2562

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEOMANN & COLE [2014] FCCA 2562

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application for recovery order – allegations of violence, drug abuse and other antisocial behaviour – appointment of independent children’s lawyer – two children under the age of two years – whether mother’s time with the children should be supervised – whether unacceptable risk of harm to children.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 67Q, 68L

Applicant: MS YEOMANN

Respondent: MR COLE

File Number: SYC 1885 of 2014

Judgment of: Judge Scarlett

Hearing date: 31 October 2014

Date of Last Submission: 31 October 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Solicitor for the Applicant: Ms Atalla

Solicitors for the Applicant: MGA Law

Solicitor for the Respondent: Ms Ho

Solicitors for the Respondent: Fox & Staniland

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting orders are suspended.

2. The interests of the children X and Y both born on (omitted) 2012 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

3. Within fourteen (14) days from the date of this Order the parties must forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney copies of all Applications, Responses, affidavits and other relevant documents.

4. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

5. The children, X and Y, both born (omitted) 2012, are to spend time with the Applicant Mother from 9 am to 5 pm each Saturday and Wednesday at the current residence of the mother.

6. On all other occasions, the children will spend time with the father.

7. Neither party is to administer to herself or himself any illicit drug whilst the children are spending time with that parent or for 12 hours beforehand.

8. The application is adjourned to Friday 28 November 2014 for an Interim hearing at 10 am.

9. Each party may rely on one affidavit per witness, not to exceed 10 pages of text.

10. All affidavits must be filed and served no later than 21 November 2014.

11. Changeover is to be at McDonalds at (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 1885 of 2014

MS YEOMANN

Applicant

And

MR COLE

Respondent

REASONS FOR JUDGMENT

1. This is the first return date of an application by the mother of twin boys, X and Y, who were born on (omitted) 2012.  She has sought a recovery order for the children and I have indicated that I was unprepared to accede to that application.

Issues

1. The facts generally as recounted by the parties are wildly different, but each party in their affidavit material gives accounts of a dysfunctional relationship and behaviour by the other party and that would cast doubt on their parenting ability.

2. The father is critical of the mother for alleged mental health difficulties, volatility in relationship to members of her family, including her parents, with whom she currently resides, denigrating behaviour towards him and drug abuse.  The mother claims that the father has been involved in the past with motorcycle groups and people with criminal associations and that he was himself in 2003 shot on one occasion.

3. Despite all this, the parties entered into consent orders as recently as 1 April this year in the Family Court of Australia, whereby they agreed that the children would be involved in an equal shared care arrangement between them on a Friday to Friday basis.  However, these arrangements did not last long.  By July, the children were with the father and the mother has had little contact with them since then for only short periods of time, the most recently being at the beginning of this month.

4. It is hardly surprising that in the circumstances of allegations of violence, drug use and other antisocial behaviour, the Court has already taken the view 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). At the urging of the parties’ solicitors, I have listed this matter for an interim hearing on the morning of Friday, 28 November this year.

5. The parties have been directed to attend a Child Dispute Conference with a family consultant and have an appointment at 2pm on 20 November.  It is hoped that by the time the parties are back before the Court on the morning of 28 November, not only will there be an Independent Children’s Lawyer available, but that the parties will have attended the Child Dispute Conference and there will be a child dispute conference memorandum available to assist the Court and, indeed, the parties’ lawyers themselves.

6. Unfortunately, even though I indicated that the children, because of their young ages, should spend regular and frequent time with their mother between now and when this matter can be looked at more thoroughly, the parties have been unable to agree.  I expressed concern that as the children were under the age of two, from the point of view of developing and promoting an attachment with their mother, they should be seeing her regularly and frequently.  However, the parties have not been able to agree on the mechanics of this, even though there is an agreement in principle.

Orders Sought

1. The mother seeks that the children should spend overnight time with her each weekend from Friday night to Monday.  The father is of the view that the mother should spend only two hours at a time with the children, which, obviously, does not include overnight time, three times a week.  He is not of a view that this time should be spent at the home of the children’s maternal grandparents where the mother currently lives and believes that the mother’s time with the children should be supervised. 

2. I am not persuaded that either party’s proposal is necessarily in the best interests of the children, even for the period of four weeks until the matter can be looked at more thoroughly for an interim hearing.

Applications for Parenting Orders

1. I am conscious of the fact that the Court must regard the best interests of the children as the paramount consideration and that the Court looks at the provisions of section 60CC of the Family Law Act to assist it in determining what the children’s best interests are. I am mindful of the presumption of equal shared parental responsibility under section 61DA, although I am of a view that whilst making interim orders, as I am today, I should apply the previsions of subsection (3) of section 61DA, which states that equal shared parental responsibility should be the situation unless the Court considers it inappropriate. I do not consider it inappropriate.

Conclusions

1. There has been until April of this year until the children remained in the care of the father, a situation of equal time between the parents.

2. I am conscious of the need to protect the children from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.  That is one reason why I considered it appropriate to appoint an independent children’s lawyer.

3. I am also conscious of the need for the children to have the benefit of a meaningful relationship with each parent.  They are currently living with their father.  They are not spending, in my view, nearly enough time with their mother, as I have made it clear.  That situation needs to be remedied.

4. It is a matter for criticism that if, on the one hand, the mother delayed significantly in seeking a recovery order, and, on the other, if the father was of the view in late July that the children should be residing with him and spending very little time with their mother, contrary to the orders made on 1 April, why, then, is he not the applicant?  Why, then, did he not commence proceedings in this Court to vary those orders?

5. I am not persuaded that there has been shown a need for supervision of the mother’s time with the children, although I am not prepared to go so far as to award overnight time in a block, especially as the children have spent very little time with their mother since late July, looking at their young ages.

6. I am not persuaded that there is an unacceptable risk of harm to the children in staying at the residence where the mother currently lives with her parents. I am told that whilst there had been issues with a brother, that is no longer relevant as the brother is no longer in that household.

7. I am strongly of the view that the children can spend more than two hours at a time with their mother and, certainly, there is a need for them to do so regularly and frequently.  I am proposing at this stage as a stopgap arrangement until the matter can be considered more closely with the assistance of an independent children’s lawyer and the family consultant that the children spend two days a week with their mother, being a Wednesday and a Saturday.  Obviously, that will start tomorrow and it will be from 9 am to 5 pm on those days.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 November 2014