Young and Horne

[2016] FCCA 3068

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNG & HORNE [2016] FCCA 3068

Catchwords:
FAMILY LAW – Undefended final parenting hearing – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D

Cases cited:

Goode & Goode (2006) FLC-93-286

Applicant: MR YOUNG

Respondent: MS HORNE

File Number: PAC 5364 of 2014

Judgment of: Judge Newbrun

Hearing date: 9 November 2016

Date of Last Submission: 9 November 2016

Delivered at: Parramatta

Delivered on: 2 December 2016

REPRESENTATION

Solicitor for the Applicant: White & Associates

Respondent: No appearance

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Blacktown

ORDERS

1. The children, W born (omitted) 2008, and X born (omitted) 2010 shall spend time with the father in each week from after school Friday to before school Monday.

2. The children, Y born (omitted) 2013, and Z born (omitted) 2013 shall spend time with the father as follows:

   (a)from 9:00am Saturday to 5:00pm Sunday

   (b)from 9:00am Saturday to 10:00am Monday as from 1 April 2017 to 1 October 2017

   (c)from 5:00pm Friday to 10:00am Monday as from 1 October 2017 and thereafter

3. That each parent shall advise the other within 48 hours in writing of their current residential address, contact telephone number(s) including mobile telephone number and contact email address, and shall advise the other within 48 hours in writing in the event of any change to these details.

4. That each parent shall advise the other parent in writing within 48 hours their nominated contact details in order to facilitate communication with the children, and shall advise the other parent in writing within 48 hours in the event of any change to these details.

5. That the parents shall facilitate all reasonable requests made by the children to communicate with the other parent by telephone or message service.

6. That each parent shall facilitate the children receiving telephone calls or messages from the other parent at all reasonable times and in the event the children are unavailable to receive such call or message at the time placed, the parent with the care of the children shall facilitate the children returning such call or message as soon as practicable.

7. That in the event of any of the children suffering a medical emergency, accident or illness requiring medical attention whilst in either parent’s care, that each parent shall as soon as practicable:

   (a)notify the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis,

   (b)notify the other parent of the full contact details for any practitioner or facility the child may attend upon for assessment or treatment; an

   (c)authorise any practitioner or facility to provide to both parents information and documents pertaining to the child’s diagnosis, treatment and prognosis.

8. That the parents shall, whilst the children are in their care, ensure that the children attend school on each day they are enrolled to attend for the entire duration of each day without arriving late, unless wholly or partially absent due to illness or medical appointment substantiated by a medical certificate or other written confirmation from a treating health care practitioner, or other reason accepted by the school as a justifiable cause for absence.

9. That each parent shall be at liberty to obtain directly from each child’s schools at their own expense documents and information ordinarily made available to parents including but not limited to school reports, newsletters, photo order forms and invitations to parent teacher interviews NOTING THAT these orders do not require the parties to attend any interview simultaneously unless so agreed.

10. That the mother shall not consume alcohol to the extent that her blood alcohol concentration would exceed 0.05% whilst the children are in her care.

11. That the mother shall be restrained from using or being under the influence of any illicit substance whilst the children are in her care and for 24 hours prior to the children coming into her care.

12. That the parents shall be restrained from causing or allowing the children to remain in the presence of any person who is using or is under the influence of illicit substances.

13. That the parties shall follow all reasonable directions and recommendations issued to them by the children’s treating health care practitioners, therapists or education providers in respect of the children’s medical care, educational and behavioural development and each parent shall be and is hereby authorised to obtain directly from said practitioners information ordinarily made available to parents in relation to the child’s assessment and treatment.

14. That the parents shall be restrained from denigrating one another, members of one another’s families or households in the presence or hearing of the children, and shall remove the children from the presence or hearing of any third party who may do so.

15. That the parents shall be restrained from physically disciplining, hitting or striking the children and shall remove the children from the presence of any third party who does so or attempts to do so.

16. That the parents shall not allow the children to view any material of a sexually explicit nature.

17. That the parents shall ensure that the children travel in vehicles strictly in accordance with all relevant road rules and laws, including the use of appropriate child safety restraints.

18. That in the event either parent is unable to personally provide for the children’s supervision, they shall ensure they make arrangements for appropriate alternative adult supervision.

THE COURT NOTES AND DIRECTS

The Court notes the provisions of rule 16.05 of the Federal Circuit Court of Australia Rules providing that the Court may vary or set aside its orders after they have been entered if the orders were made in the absence of a party. Any application by the respondent mother to apply to the Court pursuant to rule 16.05 seeking orders that the Court vary or set aside its above orders, shall be made within 28 days from the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5364 of 2014

MR YOUNG

Applicant

And

MS HORNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an undefended hearing prosecuted by the father, the mother having substantially failed to take part in the proceedings, and she was not present at the undefended hearing. The Court is satisfied that she has notice of the undefended hearing. The parties originate from (country omitted) and emigrated to Australia in 2004/2005.

2. The mother has not filed any documents in the proceedings.

3. The Court respectfully adopts the sections of the Independent Children’s Lawyer’s (“ICL”) case outline document (exhibit A), referring to these proceedings, the relevant parties and children, documents filed by the father and the chronology. The Court notes the ICL’s proposed final orders which do not include live with, or time with proposed orders. The ICL’s proposed final parenting orders are set out in exhibit A, which are consented to by the father.

4. Interim consent parenting orders were made on 17 March 2015, 27 May 2015, and 12 February 2016, which provided, inter alia, for equal shared parental responsibly, the children to live with the mother, and certain times for the children to spend time with the father. After 12 February 2016, the eldest children were spending time with the father from Friday 5:00pm to 5:00pm Sunday each week, and the two younger children, the twins, were spending time with the father from 9:00am to 5:00pm each Saturday and Sunday. Since at least 23 September 2016 the youngest children have been spending time with the father from 9 AM Saturday until 5 PM Sunday.

5. On 19 May 2016, interim orders were made in the absence of the mother, and at the instance of the ICL, that the parents ensure, whilst the children are in their respective care, that they attend school on each day they are enrolled to attend; and that the mother submit to supervised chain of custody urinalysis testing for the detection of illicit substances. The mother did not comply with the drug testing order. The mother did not attend the child dispute conference on 20 October 2016.

6. The Court notes the submissions of the ICL, both in the ICL’s case outline and at the undefended hearing. The ICL submitted that there was a contradiction between the father’s proposed final orders in which he sought an order that the children spend time with the mother from 9:00am to 5:00pm on Saturday and 9:00am to 5:00pm on Sunday each alternate weekend, when set against the father’s contended risk concerns of the children spending time with the mother.

7. Further, the ICL submitted that there was an inconsistency between the father’s contended risk concerns of the children spending time with the mother by reference to past consent interim parenting orders agreed to by the father, and which provided for the parties to have equal shared parental responsibility, and an order that the children live with the mother.

8. The ICL submitted there was very little material before the Court to clarify the nature of the children’s relationships with each of the parents.

9. The ICL submitted that she could not be satisfied that the father’s proposed final parenting orders are in the best interests of the children.

10. The ICL was concerned that if an order for sole parental responsibility was made in favour of the father, that he could change the children’s schools. The ICL noted that the father hadn’t taken corrective action previously with a view to correcting problems with the children’s welfare issues. The ICL noted that previously an order for equal shared parental responsibility was made by consent on an interim basis.

11. The ICL was concerned that the father was not proposing any mechanism to remedy risk issues in the context of his proposed final parenting order that the children spend unsupervised daytime time with the mother each alternate weekend. The ICL submitted that the father proposed no measure to address what he contended were risk issues, apart from changing the residence of the children.

12. The ICL submitted that the Family and Community Services (“FACS”) subpoenaed material indicated that no reports have been made by the father to FACS about his contended risk issues, nor to the police. The father had never filed an Application in a Case to change the residence of the children to address these contended risk issues.

13. The ICL informed the Court that she had met the eldest two children on 14 October 2016; the ICL did not attach any weight to the views of the children who presented as immature for their age.

14. The ICL had inspected the subpoenaed documents from FACS who had conducted a home visit to the mother’s residence to check the state of the house and the food situation; the FACS report was that the house was in order.

15. The ICL submitted that there were concerning events historically in relation to the children being in the care of the mother but complaints had been made to FACS and the police, resulting in home visits by those organisations to the mother’s residence, and engagement by the mother with Brighter Futures in 2014/2015, and further, that no action was taken by those organisations to remove the children from the mother’s care.

16. The ICL submitted that there were risks to the children in the mother’s care but those risks should be considered in the greater picture of past events, but she felt unable to submit that those risks posed an unacceptable risk to the children. Again, in this context, the ICL submitted that she had difficulty in reconciling the father’s proposed final parenting orders with what he contended were the relevant risks to the children.

17. The ICL submitted that there was no unacceptable risk to the children in spending substantial and significant time with the father in terms of physical risk to them; the ICL submitted that the main problem was the potential detrimental affectation of the children’s meaningful relationship with the mother.

18. The father submitted that the risk to the children in living with the mother and spending substantial and significant time with her included the risk issues referred to by the Family Consultant in the Child Dispute Conference memorandum.

19. The ICL submitted that there was no evidence as to how the younger twin children’s (two girls aged three years two months) meaningful relationship with the mother would be affected if a final parenting order was made that they live with the father, and only spend alternate weekend daytime time with the mother. The ICL submitted that any final parenting order that the children spend time with the mother should be much more frequent than the father proposed.

20. The father’s risk concerns in relation to the children living with and spending time with the mother were referred to in the Child Dispute Conference memorandum to the court dated 21 October 2016; inter alia, they refer to alcohol and illicit drug use by the mother (for example, the two eldest children allegedly informed the father that the mother smokes marijuana all the time, and with friends who are always at the home); and contentions that the eldest children continue to be late or absent from school on a frequent basis; the father states that the children’s school is concerned about the academic progress of the children and their late attendances. The father contends that the children continuously say to him that they do not want to return to the mother’s care.

21. The subpoenaed records from the eldest children’s school, (omitted) Public School, sleeve 4, (see the tabbed documents of the ICL and the father), reveal not insignificant absences from school by those two children, including in 2015/2016. In terms one, two and three in 2016 the child W missed a total of 26 days.

Subpoenaed records from FACS

1. The subpoenaed records from FACS, inter alia refer to an Assessment Record dated 19 February 2015, and refers to a FACS telephone conference of 17 February 2015 indicating that the family has been visited and the house is clean, plenty of food, kids are always clean, no concerns.

2. A further Assessment Record dated 12 October 2015, states, inter-alia, that there were nil immediate child protection concerns identified.

3. A contact record dated 6 February 2015, refers to a domestic incident involving weapons and threats to kill by various members of the mother’s family; and at one point the contact record refers to “young men” being in dispute. There is a reference to a total of 17 persons residing in the home. It is very difficult to clearly decipher from the contact record the exact details of the domestic incident which may well have been in the presence of some or all of the children.

Father’s Affidavit evidence

1. The parties married in (omitted) 2007. They separated in September 2013. The mother left the home unexpectedly.

2. The father refers to the mother’s habitual smoking marijuana prior to the separation. He asserts that the mother is drinking to excess.

3. The father is not presently in paid employment. He attends (omitted) TAFE where he is studying English three days per week; the course is due to finish shortly.

4. The father asserts that the children are complaining to him of the mother regularly smoking in the mother’s home and that the mother has a smoke detector covered with plastic.

5. The father states in his affidavit filed 4 November 2016 that since his last affidavit was filed on 23 September 2016 he spends time with the youngest children from 9:00am Saturday until 5:00pm Sunday. He continues to spend time with the eldest two children from after school Friday until 5:00pm Sunday. Changeovers occurring at McDonald’s restaurant in (omitted).

6. The father states in the above Affidavit that the eldest child tells the father each weekend that all the children wish to come and live with him permanently.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC-93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting orders.

3. 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: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

5. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

6. If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

7. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

8. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. As submitted by the ICL, there is little evidence before the Court as to the nature and extent of the children’s relationship with each parent, however, the Court notes the father’s last Affidavit indicating that he continues to have a very close loving relationship with the children and enjoys spending time with them on the weekends.

2. In this context, it is not without relevance that the father on 17 March 2015 agreed to interim consent orders whereby both parties have joint parental responsibility for the children, the children live with the mother, and the children spend certain time with the father; the inference from these agreed orders is that the children likely enjoy a meaningful relationship with the mother.

3. The Court notes the consent interim orders of 27 May 2015. The father has been spending time with the eldest two children from 5:00pm Friday to 5:00pm Sunday pursuant to those orders. In relation to the younger twin daughters, the orders of 27 May 2015 provided for the father to spend Sunday daytime only with those children. This time increased through further interim orders made by the Court on 12 February 2016 when an order was made that the youngest children also spend time with the father from 9:00am to 5:00pm each Saturday. The Court notes the father’s most recent Affidavit indicating that he is now spending time with the youngest daughters from 9:00am Saturday until 5:00pm Sunday. It would appear a reasonable inference from the above time spent by the youngest children with the father to date that those children’s closer attachment is to the mother.

1. The Court has a significant concern that if the Court accedes to the father’s proposed final orders that the children live with him, that there is a not insignificant risk that the youngest children’s meaningful relationship with the mother may well be detrimentally affected.

2. As to the two eldest children, the Court also has some concern with making an order that those children live with the father in circumstances where, at least in 2015, the father was prepared to consent to an interim order that he only spend two nights with the eldest children each week. The Court also has some concern that the eldest children’s meaningful relationship with the mother may also be detrimentally affected if a live with order in favour of the father is made.

3. Should the Court make an order that the eldest children spend time with the father from after school Friday to before school Monday in each week, the Court is presently of the view that those children’s meaningful relationship with the mother will not be detrimentally affected, and their meaningful relationship with the father should be maintained and enhanced. Further, such an order will enable the father to hopefully become more involved in the children’s schooling routines; it is not without relevance in this context that the eldest children’s schooling attendances appear to have been quite average to date.

4. Should the Court make an order that the two youngest children spend time with the father on a graduated basis, from 1 April 2017 to 1 October 2017 from 9:00am Saturday to 10:00am Monday, and from 1 October 2017 from 5:00pm Friday to 10:00am Monday, those children’s meaningful relationship with the mother should not be detrimentally affected, and their meaningful relationship with the father should be maintained and enhanced.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court agrees with the submissions made by the ICL (in both the ICL’s oral submissions and submissions contained within exhibit A, being the ICL’s case outline), inter alia, that the father’s proposed final orders permitting the children to spend unsupervised daytime time with the mother is inconsistent with his asserted risk contentions.

2. The Court notes the ICL’s information to the Court that the eldest children were interviewed by the ICL and appeared immature for their age. The father’s numerous risk contentions appear to be sourced from statements made by the eldest children to him. The Court has some concern as to the reliability of these alleged statements by these children to the father.

3. The Court refers to the subpoenaed records from FACS. That department has previously inspected the mother’s home, she has attended Brighter Futures, Police have attended the mother’s premises, and no relevant organisation including FACS has sought to remove the children from the mother’s care.

4. The Court notes the ICL’s proposed final orders in exhibit A which should provide appropriate protection to the children provided such orders are complied with by the parties.

5. On the evidence presently before the Court, the Court is not prepared to find that there is an unacceptable risk to the children of abuse, neglect or family violence whilst remaining living with the mother.

Section 60CC(3) - Additional Considerations

(a) - Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The father’s most recent Affidavit asserts in paragraph 5 that the eldest child, speaking on behalf of his three siblings, says to the father each weekend words to the effect of,

   “we want to come and live with you dad. When can we come and live with you permanently?”

2. The Court does not attach significant weight to this evidence, noting the ages of the children, and the ICL’s information to the Court that the children are immature.

(b) - The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the meaningful relationship primary consideration discussion above.

(c) - The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The Court notes the father’s proceedings in this Court.

(ca) - The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father asserts that he adequately maintains the children when they are in his care. The Court otherwise refers to its discussion above under the need to protect primary consideration, in relation to the mother.

(d) - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

3(f) - The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. There is very little evidence on these issues.

(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court notes the ICL’s information to the Court relating to her interview with the eldest children and their apparent immaturity.

(h) - If the child is an Aboriginal child or a Torres Strait Islander child: (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii)  the likely impact any proposed parenting order under this Part will have on that right.

1. Not applicable.

(i) - The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There is very little evidence before the Court in relation to these issues.

(j) - Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) - If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. Not applicable.

m) -Any other fact or circumstance that the court thinks is relevant

1. Not applicable.

Equal Shared Parental Responsibility: ss. 61DA(1) and (2)

1. The Court refers to the ICL’s submissions in this context. The father agreed to an order for equal shared parental responsibility back in 2015, at a time when the father’s contended risk issues were apparent to him. The Court is not prepared to make an order for sole parental responsibility in favour of the father in relation to the children, it not being persuaded that this will be in the best interests of the children to do so.

Section 61 DA (3) provides:

Equal time

1. It would appear from the father’s evidence that an equal time arrangement would not operate successfully in the best interests of the children noting the historical conflict between the parties.

Substantial and significant time

1. The Court refers to its discussion above under the meaningful relationship primary consideration; if orders are made for the children to spend time with the father as indicated in that discussion, then such time will probably constitute substantial and significant time under the Act.

Summary

1. Evaluating the above considerations under section 60CC of the Act, it will be in the best interest of the children to make orders as follows:

   a)The children, W born (omitted) 2008, and X born (omitted) 2010 shall spend time with the father in each week from after school Friday to before school Monday.

   b)The children, Y born (omitted) 2013, and Z born (omitted) 2013 shall spend time with the father as follows:

   i)from 9:00am Saturday to 5:00pm Sunday

   ii)from 9:00am Saturday to 10:00am Monday as from 1 April 2017 to 1 October 2017

   iii)from 5:00pm Friday to 10:00am Monday as from 1 October 2017 and thereafter

   c)Orders 1 to 16 inclusive in exhibit A

   d)The Court notes the provisions of rule 16.05 of the Federal Circuit Court of Australia Rules providing that the Court may vary or set aside its orders after they have been entered if the orders were made in the absence of a party. Any application by the respondent mother to apply to the Court pursuant to rule 16.05 seeking orders that the Court vary or set aside its above orders she shall be made within 28 days from the date of these orders.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 1 December 2016