· 2021-10-20T07:49:19+0000 · 750 posts

Mother Opposes Father's Application for Overnight Time with Child

Enright & Normands [2021] FedCFamC2F 2 (3 September 2021)

An application was filed by the Father for the child to commence overnight time with Father. On the other hand, an application was filed by the Mother for the child’s time with Father to be reduced. The Court, in making its orders, relied on the mother's submissions regarding the child resisting the changeover and what would be in the best interests of the child.

Facts:

On 9 May 2019, parenting orders were made for the parents to have equal shared parental responsibility for X, that X live with the Mother and spend time with her Father. X was ordered to be placed on the Airport Watchlist. The parties attended a Child Dispute Conference on 24 May 2019, and the family consultant provided a memorandum to the Court later that day. On 18 September 2019, the Father filed an Application in a Case seeking that the Father spends additional time with X for a further period of 6 (six months) presumably thereafter reverting back to the orders of 9 May 2019.

Upon the expiration of the six months of these orders’ implementation, the Christmas time and New Years Day time with the Father would also cease, which depending on the timing of the implementation of these orders, could defeat the purpose of having Christmas time and New Years Day time at all. On 20 September 2019, further interim orders were made by consent between the parties providing that the Father spend time with X: (a) Each Monday from 9:00AM until 12:00PM;
(b) Each Wednesday from 11:30AM until 6:30PM; (c) Each Saturday from 9:00AM until 5:00PM; (d) On Christmas Day 2019 from 10:00AM until 5:00PM, and on New Year’s Day 2020 from 10:00AM until 5:00PM.

Orders were made providing that if either party is unable to care for X at any particular time, for a period in excess of four hours, they give the other parent the option to care for X. On 14 October 2019, the parties again negotiated consent orders in relation to property. The Court stood the matter over to 21 February 2021 for further mention and “possible interim hearing of the Father’s Application in a Case filed 18 September 2019”. On 21 February 2020, the Father pressed for the Court to hear his Application in a Case, but the Court ran out of time to hear the matter.

On 9 October 2020, the parties indicated to the Court of their consent position that the matter should go to family dispute resolution (‘FDR’), ideally through the Legal Aid Commission of New South Wales. The Court suggested to the parties that the interim judgment (which by that point was in its final stages of drafting) should be placed ‘on hold’ so as not to interfere with the FDR process.

Issues:

I. Whether or not the time X spends with her Father should progress to overnight occasions.

II. Whether or not the Father should be required to undergo any individual therapy or complete any particular courses prior to spending overnight time with the child.

III. Whether or not orders should be made for the child to be again placed on the Airport Watchlist.

IV. Whether or not orders for the parties to follow the child’s treating paediatrician recommendations should be made.

Applicable law:

Family Law Act 1975 (Cth) s 60B - sets out the objects of Part IV of the Act relating to children

Family Law Act 1975 (Cth) s 60CA - 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.

Family Law Act 1975 (Cth) s 60CC - provides that the primary considerations in making parenting orders are the benefit to the child of having a meaningful relationship with both of her parents, and any need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.

Family Law Act 1975 (Cth) s 61DA - provides for the presumption of equal shared parental responsibility.

Family Law Act 1975 (Cth) s 62G - provides the means of making orders for the preparation of a Family Report.

Family Law Act 1975 (Cth) s 65D - provides that the Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.

Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011 - provides that if an agreement cannot be reached and the issue cannot otherwise be resolved then the Associate may be contacted to arrange for the matter to be listed for directions provided that all parties are advised of the request.

Federal Circuit Court Rules 2001 (Cth) div 13.3, r 16.01 - provides that it is incorrect that the only proper manner in which to finalise an interlocutory application is by way of delivery of judgment.

Eaby & Speelman[2015] FamCAFC 104 - provided that the judge's approach in sometimes having a little alternative than to weigh the probabilities of competing claims enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

Grella & Jamieson [2017] FamCAFC 21 - held that a discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.

Mazorski & Albright[2007] FamCA 520; (2007) 37 Fam LR 518 - provided that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.

McCall & Clark[2009] FamCAFC 92 - described what constitutes ‘meaningful’ time between a parent and a child.

MRR & GR[2010] HCA 240 - provided that in parenting proceedings under the Act,the Court is required to follow the legislative pathway set down in the Act.

Napier & Hepburn[2006] FamCA 1316; (2006) FLC 93-303 - provides a detailed exposition of the treatment of risk in parenting matters.

Newett & Newett[2020] FamCAFC 76 - where it is not usually appropriate for any party (or any legal practitioner) to contact an associate of a judge about a matter unless all parties are in agreement that this is appropriate and for good reason.

SS & AH[2010] FamCAFC 13, [100] - the Court observed that apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

Analysis:

The mother submitted that the Father’s affidavit “is self-serving with no independent evidence being provided for any of his claims about X’s time with him" as such, she has not referred to the Father's affidavit in her submissions. The Mother’s position is that the Father’s failure to adhere to the Court Orders should be of significant concern to the Court as it demonstrates an unwillingness of the Father to comply with the Orders of the Court. However, it has long been the principle of the Court in parenting proceedings (as correctly submitted by the ICL) that the Court is generally aided by having more evidence rather than less.

The lateness of the filing of the Father’s affidavit is trivial in the grand scheme of the timeline for this matter, where written submissions were not due for another 14 days after the filing of fresh evidence. If the Father has engaged in repeated flouting of Court orders as the Mother suggests, it has always been open to her to file an Application – Contravention in relation to that conduct. Such recalcitrant behaviour on the part of the Father is nowhere to be seen in the Mother’s updating evidence.

In the Mother’s June 2021 evidence in relation to X calling the Father a “monster”. The Mother relays this as being a matter for the Court’s concern, deposing “... while changing her clothes to get ready for the visit she said, words to the effect of “I don’t want to go with Daddy. I want to stay with you to protect me”. A few minutes later she said, words to the effect of “I don’t want to go with daddy because daddy is a monster.” X purportedly said this to her Mother when she was two years and 10 months old. The Mother gave evidence of “occasions” at changeover where the child sees her Father, jumps to her Mother and asks to be picked up, saying “I’m scared of daddy. Daddy’s mean”.

The Mother gave evidence of “occasions” at changeover where the child sees her Father, jumps to her Mother and asks to be picked up, saying “I’m scared of daddy. Daddy’s mean”. However, the Mother did not give any evidence about the frequency of such incidences, when these incidences started, the most recent incident of the child doing this, nor how the Father responds to these generalised events.

Conclusion:

The Court concluded that it would be in the best interests of the child to commence overnight time with Father. The Court discharged all previous parenting orders except for: (a) Order 1 made on 9 May 2019; (b) Order 3 of the orders made by consent on 20 September 2019; and (c) Order 4 of the orders made by consent on 20 September 2019. The child is to live with her Mother and spend time with her Father. Any and all communication except in the case of an emergency is to occur in writing between the parties. Both parties are restrained from physically chastising the child including, but not limited to, smacking, hitting, pushing, or pulling the child, and from allowing or authorising any other person to do so. Each of the parties is restrained from making derogatory comments of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or within the hearing of the child. Both parties are directed to follow all recommendations of the child’s treating doctors and allied health specialists.

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