ALLEGATIONS BY MOTHER AND ICL THAT FATHER POSES AN UNACCEPTABLE RISK TO THE CHILD, WHILE FATHER SEEKS OVERNIGHT STAYS
This matter involved Interim proceedings covering parenting issues and the question whether the father is an unacceptable risk to child, and if so whether that risk can be mitigated by orders. In a case where presumption of equal shared parental responsibility does not apply but parties have consented for numerous orders to be made and where orders can mitigate risk to child, can overnight time with father ordered?
FACTS:
- The parents migrated to Australia in 2007 and formed a cohabitive relationship.
- X was born in 2012, 5 years old when her parents separated and 8 years old now.
- The parties separated on 3 June 2017 and divorced on 7 August 2018.
- The mother in property settlement by consent owns and occupies the matrimonial home.
- The father lives in a two-bedroom leased flat, one bedroom is set up for use by his daughter if she is in the father’s care overnight.
- The father is employed as a professional.
- The mother is a self-employed trades-person.
- The mother employs a nanny to assist her with the care of X while the mother is at work.
- Neither parent has re-partnered.
- Prior to separation positive and cooperative co-parenting.
POST Separation
Due to the anxiety of the separation the father developed low moods for which he was provided by his general practitioner a ‘GP mental healthcare plan’ and referral to a psychologist for treatment.
The medical records were subpoenaed and make it patently obvious that the father’s low mood and anxiety was related to the breakdown of his marital relationship and that there was a steady improvement in his presentation since his first consultation.
The father mainly spent time with his daughter by coming to the former matrimonial home, with the father spending significant time with his daughter until the mother changed the locks in the house in August 2018 when the divorce was granted.
In October 2018, the mother arranged for her daughter to have sessions with her school counselor (without informing the father) to assist her to “cope with stress and her emotions” because the mother perceived that she was becoming “angrier more frequently, and her mood changed rapidly”.
The father has not had any overnight time with his daughter since the parties separated.
Both parties make assertions that the other party has perpetrated family violence, each denying the allegations made by the other, however there is no evidence that there are or have at any time been any apprehended violence orders between the parties or affecting either of them.
The Court noted in the Child Inclusive Conference memorandum submitted to the Court, the Family Consultant records:
[The father] acknowledges that he has said things to [the mother] that he should not have, has screamed at her and called her names. He said that, during an argument, he has broken a table and slammed doors. [The father] said that it is a possibility that he threatened to kill [the mother] during an argument but said that he did not mean this.
It was also noted by the Family Consultant that the mother alleged that the father perpetrated family violence against her of a nature not referred to by the mother in her evidence in any way, being:
Pressured her to engage in sexual activity ... went through her phone ... monitored her browser listings and phone calls ... monitored her whereabouts ... made her ask permission before she made any purchases ... socially isolated her.
The mother raises the issue of the father’s parenting capacity and in her evidence asserts that the father is not capable of properly looking after his daughter, though inherently in her application she considers that after the period of supervision sought in her order he would be capable of looking after his daughter through the daytime.
In her evidence the mother asserts that while her daughter is in the father’s care:
He does not feed her properly;
That he gave her an electronic tablet device set up so that he could contact her;
That he insists that she attend sports classes when the mother asserts she does not like the classes;
That he was on an occasion late collecting she from school; and
That as a consequence there is no arrangement for him to collect she from school anymore.
In her affidavit the mother expresses fears (not objected to on hearing) that the father will not care for his daughter, that he will harm himself or her, and that “He may take her away without me knowing where he has gone.”
The mother’s fear that the father will take his daughter away and not return her to her mother are not grounded in any of the evidence. In that regard the mother relies on the evidence summarised above, in relation to family violence, and below in relation to her assertion of the father’s mental health issues to ground her fear that he may harm himself or his daughter.
For his part the father denies that he would ever do anything outside his daughter’s best interests by retaining her from her mother or from failing to provide her with proper and appropriate care. He deposes that he feeds her appropriately when she is in his care and that she does not go home to her mother hungry.
Patently, the ICL is concerned that the father may have mental health issues that can present a risk to his daughter as he submitted that the Court should take a cautious approach in relation to orders for the time to be spent by the father of the child “...as there is no expert evidence and so there should not be any order for overnight time but the Court should keep the status quo going.” However, the ICL does not consider there is a need for supervision of the father’s time.
X is noted as expressing to the Family Consultant that she would like to extend the time she spends with her father to include overnight time. X said that if she does not feel comfortable she could speak to her mother and get a hug from her father in order to feel more comfortable and settled.
“X said she loves both her parents.”
The father pays child support of $1,748 per month pursuant to an assessment under the child support legislation. He pays half the cost of X’s extracurricular activities pursuant to a voluntary agreement between the parties.
ISSUE:
Whether or not the Court despite allegations of unacceptable risk can allow the father to have the child overnight?
THE LAW:
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children.
Section 60CA of the Act provides that 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. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper. The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings.
Section 61DA provides that 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.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
Whether the child spending equal time with each parent would be in the best interest of the child; and
Whether the child spending equal time with each of the parents is reasonably practicable.
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.
Section 60CC – The Primary Considerations
The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and any need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[34] Subsection 2A mandates that the Court must give greater weight to the consideration of any need to protect X over the benefit to X of having a meaningful relationship with both of her parents.
ANALYSIS
Of particular note here is the note from the Family Consultant’s interview with X in the Child Inclusive Conference memorandum to Court “X said that she loves both of her parents.”
Patently it is to X’s benefit to have a meaningful relationship with both of her parents.
Is there a risk to X in her father’s care such that it is unacceptable and needs to be mitigated by her time with her father being “...supervised for a period of no less than two months from the date of orders”, as sought by the mother, and to not include any overnight time, as sought by both the mother and the ICL?
The mother asserts in her evidence and her submissions that the father is affected by mental health issues that require him to undergo psychiatric assessment and that, in the current circumstances, presents an unacceptable risk to X that can only be mitigated by the orders for supervision and daytime only time between father and daughter.
The evidence does not support that assertion.
There is certainly no diagnosis of any mental health issue affecting the father. The evidence relied upon by the mother and the ICL’s in order to ground a need for psychiatric assessment of the father, and the making of orders addressing an unacceptable risk, is not enough.
The evidence presented by the mother of statements made to her by the father following separation, that caused her concern in relation to his mental health, are not such as to cause me to find that there is a risk to X in the father’s care without supervision and/or overnight in consequence of any mental health issues.
In effect, that evidence is part contested and part not contested. In any event I find that the evidence presented by the mother is not such as to ground a finding of risk. To the contrary, the evidence contained in the documents produced on subpoena the psychologist, tend very much to the contrary. I note that there is no suggestion therein of concern in relation to the father’s mental health and certainly no suggestion of a diagnosis.
The Court found that the evidence does not ground any risk, and there is no unacceptable risk, to X in her father’s care, unsupervised or overnight, in relation to his parenting capacity.
HELD: What orders are proper?
The Court found :
- It is appropriate to make orders for the father to spend time with X without a condition of supervision being imposed.
- It is appropriate that such time between the father and X include overnight time, and so more than that proposed by the mother and the ICL, but that initially it not be to the extent of double overnight each alternate weekend as proposed by the father.
- It would be in the best interests of X for the time to be for one overnight each fortnight for a period of four months and then two consecutive overnights per fortnight pending final hearing.
- Included in the orders proposed by the ICL, that I have indicated I will make, is the order requiring the father to obtain a mental health assessment report from a psychiatrist of his choosing and to provide the assessment to the mother and the ICL. The assessment must address stated topics.
Citation:
LANGER & FRANKE
FEDERAL CIRCUIT COURT
[2020] FCCA 1852