Sunday, 28 September 2008

Family Court: interim case: child is week about with grandmothers

In the recent Family Court case of Harris and Smith (No 2) , the father appealed from orders of the Federal Magistrates Court that the child live in Canberra, on a week about basis with each of his grandmothers.

The orders had been made following the July 2007 holidays when the child went to her mother in Sydney and did not return, the child apparently afraid of her father, with whom she had been living since separation almost 6 years before. Neville FM ordered that the child be returned to Canberra (where the father and the two grandmothers lived) and move week about between their homes.

The father appealed, saying that there was no reason that the child should not be returned to his care.

Whilst the child saw plenty of her dad on the weeks when she was with the paternal grandmother, it was unclear about how much time she spent with her mother, given that her mother lived in Sydney.

Justice Finn held:

As in most interim parenting decisions, it is impossible to predict what
will be the outcome of the final proceedings. It is particularly difficult in
this case where it is not clear to me what will be the proposals to be
considered at the final hearing, or indeed even the precise parties (at least on
the mother’s side) to those proceedings. In these circumstances there is much to
be said for maintaining the present arrangement, thereby avoiding unnecessary
disruption to the child. In other words, if I cannot be certain that there will
be final orders for the child to live with the father, it could well be
disruptive for the child to move him back to the father in circumstances where
he may be moved to some other home or homes as a result of a final hearing.
There is also the consideration that on the father’s proposal, the orders would
provide for alternate weekend (and half school holiday) time with the mother
with no provision for a role for the maternal grandmother; this would be a
significant change for the child, particularly on an interim basis...

It is important to observe that there was apparently no complaint or
criticism regarding the father’s capacity to care for the child during the six
year period prior to July 2007. But, similarly, no complaint or criticism is
apparently made by the father regarding either grandmother’s capacity to care
for the child, and indeed it seems that prior to these proceedings, the father
was prepared to involve the maternal grandmother extensively in the child’s
care. The mother’s capacity to provide for the child in the various ways in
question is unknown, but it appears that she has not for many years had the same
level of involvement in his care as the father or either grandmother...

However, in the submissions on behalf of the father, it was asserted
(albeit in the context of s
that “the presumption of shared parental responsibility applies
and there is no evidence at this stage to rebut it”. It was then further
submitted (in the context of s
that equal time is not practical because the mother lives in
Sydney, but that the father’s proposal would allow the child to spend as much
significant time with the mother as her living and working arrangements permit.
Thus, it would appear that the father seeks to rely on the presumption
contained in s
and the matters in s
which arise as a consequence of the presumption to support his
proposal that the child live with him and spend time on alternate weekends with
his mother.
In the absence of any argument before me as to how the
presumption in s 61DA
and the consequences of its application contained in s
, operate in a case where the dispute is between one parent and a third
party, it would not be appropriate for me to express any view on these matters,
except to say that I consider it appropriate in this case to hold that pursuant
to s
, it is not appropriate in the circumstances of this interim case, to
apply the presumption.
This conclusion would, in my view, mean that both
parents of this child retain the parental responsibility for the child which is
vested in them by s
of the Act....

It will have been seen that the conclusions
which I have been able to reach in relation to the s
matters and which have direct relevance to the competing proposals are
the child has a good relationship with both parents and both
there is no criticism of the capacity of the father or either
grandmother to care and provide for the child; similarly there is no challenge
to the father’s attitude to the responsibilities of parenthood; the mother’s
capacities and attitudes in relation to the care of the child are unknown;
there is not sufficient evidence to find that the child would be at risk of
harm with the father;
the effect on the child of a change at this time in
his living arrangements which have been in place since September last year is
unknown, but there must be a concern regarding the disruption to him if those
arrangements were to be changed now only to be changed again after the final
hearing; further there must be some concern regarding the impact on him if the
significant involvement in his life of his maternal grandmother was to be
substantially reduced.
While the decision is clearly a finely balanced one, I
consider that on balance the child’s best interests would be likely to be best
served by maintaining, until the proceedings are finally heard, the present
week-about living arrangement with each grandmother rather than reverting to the
long-standing arrangement which existed prior to mid 2007 whereby the child
lived with the father.

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