In the Matter of Jack and Jill - Case Outline

IN THE MATTER OF JACK AND JILL FEDERAL CIRCUIT COURT OF AUSTRALIA Heading Word Count = 879 1. Issues in dispute This is an interim hearing in relation to a parenting matter between Jack and Jill. The primary issues are time spent with Tyler and welfare concerns for Tyler. 2. Orders sought 1) That the parents shall have equal shared parental responsibility. 2) That the child shall live with mother and father on an equal time basis 7 nights each a fortnight. a) The changeover is to occur at school to prevent any further arguments. Therefore, the parents will follow the following times: i) The child is to be dropped at school at 8.30 am by one parent on Monday morning, the other parent is to collect the child at 3.00 pm that afternoon. ii) During the school holidays time is to be equal and the parent who has the child at the start of the holiday will continue to have the child for half the holiday. The handover will occur at McDonalds at 10.00 am unless not possible this will reduce the number of times that the parents meet in person. 3) The child is to remain in Sydney. Should the mother decide to move to Brisbane the child will live with the father and the child will spend time with the mother. The child will spend ¾ of every school holiday with the mother to allow the child to build a meaningful relationship with the mother. 4) The mother is to seek treatment for her alcohol abuse. 5) The child is to attend a local school in Sydney. 6) Mother and father to seek mediation to work on resolving issues regarding the child without the matter escalating into an argument. 7) Legislative Pathway As per Goode v Goode 2006 the Court must follow the legislative pathway for an interim case, the Court would need to address the following. The Court would need to identify the proposals of all parties, the issues and the facts.1 The Court would need to consider matters addressed in s60CC, the best interest of the child.2 The Court must also decide whether a presumption applies to equal shared parental responsibility pursuant to s61DA.3 Lastly the Court must consider if equal time is in the best interest of the child pursuant to s65DAA(3).4 The overarching ruling throughout Goode v Goode re-enforces the legislation and that is the best interest of the child over rides any other consideration. 1 Goode v Goode (2006) 36 Fam LR 422. Ibid. 3 Ibid. 4 Ibid. 2 Step 1 8) Primary Considerations a) s60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents: i) The mother has facilitated Tyler spending time with the father since the separation occurred in October 2018. This has been occurred through an equal time basis with each parent having Tyler for seven nights a fortnight.5 ii) The mother seeks to move to Queensland with the child therefore preventing the father from having a meaningful relationship with the child. However, it should be noted that the child has been developing a meaningful relationship with the father.6 iii) The child has stated to the family consultant that he enjoys spending time with dad. Furthermore, the child has said “mummy is going to take me to movie world every weekend, but I will miss dad” This was made in reference to moving to Queensland.7 iv) Tyler will benefit from continuing to have an ongoing relationship with both parents.8 5 McCall v Clark [2009] FamCAFC 92. There was no existing bond leading up to the hearing however there was consideration to the future benefit. The present bares some weight however the decision needs to be based on the future benefit.*2020 students – an example of the way to reference a case* 6 Childs v Childs [2009] FamCA 434. Time does not always result in a meaningful relationship; the court will consider the current circumstances and decide that a meaningful relationship with one parent is better than no parent. 7 McCall v Clark [2009] FamCAFC 92; Cannon v Acres [2014] FMCAfam 104. The child expressed the wish to no longer see her father and there was violence and stalking involved. 8 Ibid. s60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence: v) The mother has taken an ADVO out on the father due to an incident that occurred on the evening of the separation. Jack slapped the phone out of the mother’s hand and said to her “you are a hopeless and terrible mother”. The child was present for this argument.9 vi) The father is concerned with the mother’s ability to adequately look after the child while heavily drinking. And has experienced violence as a result of the heavy intoxication with an incident occurring on the 8th of September 2016 when the mother threw an empty bottle of wine at the father. This narrowly missed the fathers head and smashed against the kitchen wall. The child was in his room during this incident.10 b) s60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b): i) There are no facts that indicate either the mother or father have acted in a controlling or coercive manner towards the other.11 The type of family violence that has occurred in the relationship would be classed as common couple conflict. This has occurred as a result of 9 s4AB(1) Family Law Act 1975 (Cth); *2020 students and example of citing the legislation* Longer v Longer [2013] FMCAfam 257. The father had physically assaulted the mother and the Court held this behaviour was not Coercive or controlling nor did it constitute a reign of terror. 10 Ibid. 11 Carra v Schultz [2012] FMCAfam 930. The mother was preventing the father from communicating with the child did not constitute controlling or coercive behaviour. This demonstrates that the conduct for this to be present to be greater than this behaviour. substance abuse and the second incident was separation instigated and would not constitute violence or a reign of terror.12 9) Additional Considerations a) s60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or levels of understanding) that the court thinks are relevant to the weight it should give to the child’s views: i) The child has expressed the desire to spend time with dad and the grandparents.13 ii) The child has also stated his excitement to move to Queensland.14 b) s60CC(3)(b) The nature of the relationship of the child with: i) The child currently shares a positive relationship with both mother and father.15 ii) The child also shares a close relationship with Nan and Pop on the father’s side of the family which has been noted by the family consultant on the 26th March 2018.16 12 Longer v Longer [2013] FMCAfam 257. Bondelmonte v Bondelmonte & Anor [2017] HCA 8. The judge must consider the wishes however due to the age and the influence of the parents that may play a but the wishes maybe disregarded; Escott v Lowe [2007] FamCA 307. The age of the children meant that did not have the maturity to determine their own choices. 14 Taylor v Baker [2007] FamCA 1246,32. 15 Pierce v Pierce [2010] FMCAfam 1137, 268. 16 Farnell v Chanbua [2016] FCWA 17, 221. Although the existing relationships are additional considerations, such relationships should be given the utmost importance. 13 c) s60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: i) s60CC(3)(c)(i) To participate in making decisions about major long-term issues in relation to the child: (1) Both parents have actively taken the opportunity to make decisions regarding the child. This is evident in the current living arrangements.17 ii) s60CC(3)(c)(ii) To spend time with the child: (1) The father has reduced his work hours to spend more time with the child before the child starts school next year. (2) The mother only works part-time and is able to spend adequate time building a relationship with the child. iii) s60CC(3)(c)(iii) To communicate with the child: (1) Both mother and father have made attempts to communicate with the child and as a result have built a relationship with the child. This is evident with the fact the child is sad to leave mum at McDonalds and the comment that the child would be sad to leave the father if the child moves to Queensland.18 iv) s60CC(3)(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: 17 18 Goode v Goode (2006) 36 Fam LR 422, 6. Ibid. (1) The father has maintained his parental obligations to maintain the child since the separation and there is no evidence to suggest otherwise.19 (2) The mother has a drinking habit, before separation this caused the child to be left hungry at times. There is no evidence to suggest this is still occurring however the father is concerned that it may be.20 d) s60CC(3)(d) The likely effect of any changes in the child’s circmstances, including the likely effect on the child of any separation from: i) s60CC(3)(d)(i) Either of his or her parents: (1) If the mother is successful in moving to Queensland this could prevent the father from building a meaningful relationship with the child.21 (2) The child has stated that moving to Queensland would result in him missing his dad.22 (3) If the mother moves without the child, this may result in the child suffering pursuant to attachment theory. The child is at an age where this could be a real issue for the child with future relationships. However, due to the new relationship and the lack of a support network if the relationship deteriorates this will also have a negative impact on the child.23 19 Ibid. Ibid. 21 Bondelmonte v Bondelmonte & Anor [2017] HCA 8. 22 McCall v Clark [2009] FamCAFC 92. 23 Justice Steven Strickland ‘Attachment Theory and Family Violence: a judicial perspective’ (Conference Paper, AFCC Annual Conference, Chicago, 6-9 June 2012). Young children are susceptible to suffer from being apart from the 20 ii) s60CC(3)(d)(ii) 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 child currently has a good relationship with the grandparents. Moving the child to Queensland would prevent the child from continuing to have this relationship. e) s60CC(3)(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: f) There are no current overbearing expenses or difficulties with the child spending time and communicating with both parents. However, if the child moves to Queensland this will result in potential difficulty for the father to spend time with the child. There will also be additional cost involved i.e. travel between states to spend time with the child. At present the proximity highlights the practicality of the shared parenting arrangement.24 g) s60CC(3)(f) The capacity of: i) s60CC(3)(f)(i) Each of the child’s parents: ii) The father has the capacity to care for the child, he currently holds fulltime employment. He also has a support network to assist with raising the child.25 primary care giver or the parent they have the greatest attachment to. *2020 students an example citing social science theory* 24 Goode v Goode (2006) 36 Fam LR 422, 106; Taylor v Baker [2007] FamCA 1246,37. 25 Goode v Goode (2006) 36 Fam LR 422,45. The capacity of the parent to meet the future needs and communicate effectively with respect of the children. iii) The mother has been able to care for the child however there are concerns regarding the overall well being of the child with the mother’s abuse of alcohol and Facebook addiction. The mother had on occasions failed to feed the child or ensure that food was available in the house.26 iv) The mother uses her friends and colleagues to baby sit her child while she works. v) s60CC(3)(f)(ii) 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) The child’s grandparents on the father’s side assist with raising the child and have developed a bond with the child that has been noted by the family consultant.27 (2) The mother is estranged from her family and the only known relative is an aunty that lives in Queensland. h) s60CC(3)(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: i) The mother has recently begun dating a new person who lives in Brisbane, they met through an online dating platform. The mother seeks to move there with the hopes of securing part-time employment.28 26 Ibid. Ibid. 28 Purdy v Gervasis [2009] FamCA 388, 264. 27 ii) The mother uses her friend to babysit while she works. Being part- time the work can be unpredictable and vary from week to week. iii) The mother lives in the matrimonial home at present. iv) The father lives in a granny flat on his parent’s property. v) As above the child’s grandparents assist with baby sitting in the absence of the father due to work commitments. i) s60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: i) N/A j) s60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents: i) Both parents have demonstrated a positive effort towards their parental responsibilities, this is evident from the above facts. k) s60CC(3)(j) Any family violence involving the child or a member of the child’s family: i) There have been two instances of family violence, the first as mentioned above involving the intoxicated mother throwing an empty wine glass at the father 08/09/2016. The second instance was the father slapping the phone from the mother’s hand on the night of the separation 2/10/2018.29 29 Longer v Longer [2013] FMCAfam 257. ii) These instances bare no weight on the best interest of the child due to the frequency and the severity.30 l) s60CC(3)(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: i) s60CC(3)(k)(i) The nature of the order: (1) The order that has been taken out is a provisional Apprehended Domestic Violence Order (ADVO) this was taken out by the police to protect the Mother.31 ii) s60CC(3)(k)(ii) The circumstances in which the order was made: (1) On the evening of the separation there was an argument regarding the fact that the child had not been fed and that the mother was addicted to Facebook.32 (2) As a result, the father slapped the phone out of the mother’s hand, the phone the smashed on the floor and the mother called the police.33 iii) s60CC(3)(k)(iii) Any evidence admitted in proceedings for the order: (1) N/A 30 Ibid. Family Law Act 1975 (Cth) s60CF. Informing court of relevant family violence orders. 32 Ibid s60CG. Court to consider risk of family violence with the best interest of the child to be considered. 33 Ibid. 31 iv) s60CC(3)(k)(iv) Any findings made by the court in, or in proceedings for, the order: (1) N/A v) s60CC(3)(k)(v) Any other relevant matter: (1) The father will be contesting the ADVO on the 6/05/2019. m) s60CC(3)(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: i) It would be preferred that the Order made, results in no further proceedings related to the child in the future.34 n) s60CC(3)(m) Any other fact or circumstance that the court thinks is relevant: o) N/A Step 2 10) Parental Responsibility a) s61DA Presumption of equal shared parental responsibility when making parenting orders: 34 Goode v Goode (2006) 36 Fam LR 422. (1) s61DA(1) 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: (a) The presumption applies here, the child would benefit from having equal shared parental responsibility. Regardless of the arguments that occur at McDonald’s that demonstrates the parents struggle to communicate the parents have managed to agree to several issues so far as per 4.1.35 (2) s61DA(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) s61DA(2)(a) Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); (b) N/A (c) s61DA(2)(b) Family violence: (d) The family violence that has been mentioned at 5.12 does not indicate that the presumption would not be in the best interest of the child.36 (3) s61DA(3) When the court is making an interim order, the presumption applies unless the court considers that it would 35 36 Polites v Strathos [2013] FamCA 1002. Longer v Longer [2013] FMCAfam 257. not be appropriate in the circumstances for the presumption to be applied when making that order: N/A (4) s61DA(4) The presumption 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: N/A Step 3 11) Equal Time or significant and substantial time a) s65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances: i) Both mother and father have had equal time from the date of separation 02/10/2018, the time has been divided with seven nights each from Sunday to Sunday. This system has worked with the grandparents assisting the father and the mothers friend looking after the child when she is unable to due to her shift work. 37 ii) Due to the proximity between the mother and father, equal time has been effective and when the child attends school this arrangement should be able to continue. The child will also be able to participate in extra curriculum activities without a burden to either parent.38 37 38 Goode v Goode (2006) 36 Fam LR 422, 113. Ibid. Reflection: I have learnt the process that is required for applying for interim parenting orders. Initially I thought the task would be straight forward however, I quickly learnt there is more involved then deciding what outcome you would like for your client. The process requires you to consider both sides and ultimately put the child’s needs first. At first, I thought that the father should have sole care due to the mothers drinking habits however, after further research there were other alternatives such as ordering the mother to attend alcohol classes. By doing this the child can maintain a meaningful relationship with both parents. Furthermore, I struggled to locate cases that were in the favour of the father. Looking at a number of key cases and the decision that is often held revolves around practicality i.e. allowing the mother to move interstate to keep her content which in turn is treated as being in the best interest of the child and this overrides the fathers ability to see the child on a frequent basis.39 I can see how some parents would find the decisions hard to take with that regard. However, there are countless cases involving violence towards the other parent and the Court hands down an order that permits the violent parent time with the child. This would also be hard for the victim of the domestic violence and again it comes back to the best interest of the child. 39 Taylor v Baker [2007] FamCA 1246.