Please note that this matter was subsequently transferred to the Family Court.

The Family Court’s final judgment can be found here: Swane & Thomes and Ors [2020] FamCA 808 (21 September 2020)

SWANE & THOMES [2019] FCCA 3698

Catchwords: FAMILY LAW – Parenting – interim proceedings – father to spend supervised time with the children – ICL appointed.

Legislation: Family Law Act 1975(Cth) ss.61DA(1), 65DAA

Applicant: MS SWANE

Respondent: MR THOMES

File Number: BRC 4102 of 2019

Judgment of: Judge Purdon-Sully

Hearing date: 1 July 2019

Date of Last Submission: 1 July 2019

Delivered at: Toowoomba

Delivered on: 2 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Cudmore Legal

Solicitors for the Respondent: Best Wilson Buckley Family Law

ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:

(1) That the children, D—–THOMES SWANE born 25 October 2014 and T—–THOMES SWANE born 19 February 2016 (“the children”), live with the mother.

(2) That the children spend supervised time with the father at the Toowoomba Contact Centre (“the Contact Centre”) for a period of no less than two (2) hours once per week with such time to occur on Friday, or any other time as can be facilitated by the Contact Centre.

(3) That within seven (7) days the parties enrol with the Contact Centre.

(4) That the children communicate by telephone or FaceTime with the Father each Monday, Wednesday, and Saturday between 6.00pm and 6:30pm with the Mother to initiate the call to the Father’s mobile phone.

THE COURT ORDERS:

(5) That the children, D—–THOMES SWANE born 25 October 2014 and T—–THOMES SWANE born 19 February 2016, be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.

(6) That this matter be adjourned for directions at 8.45am on 27 September 2019 in the Federal Circuit Court of Australia circuit sittings at Toowoomba.

IT IS NOTED:

1. A. It is the Father’s preference to utilise FaceTime to enable the children to communicate with him.
2. B. That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

BRC 4102 of 2019

MS SWANE

Applicant

And

MR THOMES

Respondent

REASONS FOR JUDGMENT

These reasons were delivered ex tempore and corrected for literal and grammatical errors.

Introduction

1. 1. These are proceedings under Part VII of the Family Law Act 1975 (Cth) concerning two children, D—– THOMES SWANE born 25 October 2014 and T—– THOMES SWANE born 19 February 2016.
   2. The parties commenced a relationship in about 2012 and separated either on 1 December 2018 or March 2019.
   3. Both children are young. The eldest is four years of age and the youngest three.
   4. Up until separation it is unchallenged that the parties lived with the paternal grandparents. The paternal family conducts a dairying business and the father is engaged in that.
   5. The mother is now living with the children in an undisclosed location which I understand is about two hours from Brisbane. That is relevant to an issue that I am required to determine later.
   6. There is a Temporary Protection Order in place that names the mother as the aggrieved and the father as the respondent. It was made on police application.
   7. It is unchallenged that the father has not been spending any time with these children.
   8. The competing proposals are the mother is seeking that the father have supervised time with the children which on her proposal will take place at Fernvale.
   9. Whilst the father was seeking that the children return to live with him in the former matrimonial residence, sensibly he is not pressing that at an interim stage based on the evidence before the Court and it is his proposal that time be supervised by the maternal grandmother, that that take place three times a week, and that if the Court determines that his time should be supervised at the Toowoomba Contact Centre, then the parties should avail themselves of midweek time to maximise the time that is available, although as I understand it there is no objection to time taking place on the weekend.

Legal principles

10. The Court is required to make orders in the best interests of the children. That is the paramount consideration. There is a legislative pathway that the Court is required to follow in determining what is an order in the best interests of the children. I do not propose to detail the relevant legal principles unless I am required to. They are well known.
11. The parties have experienced legal representation. I have had the benefit of hearing from them both in terms of oral submissions and also written submissions.

Discussion and determination

1. 12. For the reasons that I indicated yesterday in a dialogue between myself and Mr McCormack, sensibly the father has no doubt listened to his legal representation and is not pressing for the children to live with him. That might be an order that he seeks on a final basis or it might be an order that he seeks on an interim basis dependant upon the evidence that emerges in this matter, but however the circumstances came about in terms of the mother vacating the former matrimonial residence and removing the children, she raises a number of risk factors which are set out in the written submissions of Mr Gordon, Counsel for the mother, however the separation came about, and acknowledging that there is a dispute between the parents as to who was the primary carer of these children during the relationship, but notwithstanding that it is now July and these children have been in the primary care of their mother, they are living in a women’s refuge and the mother raises some fairly serious allegations against the father.
   13. The Court is not in a position today to make findings on disputes of fact either in favour of the mother or against the father, however as Mr McCormack for the father submitted yesterday quite sensibly, the Court must ask cautiously and in circumstances where it is not able to make findings with respect to the mother’s allegations of significant family violence with the father as perpetrator, mental health issues and drug issues.
   14. I have evidence from Dr ——, a Clinical Psychologist, that addresses some of the issues the mother raises in relation to concerns centring on the father’s mental health. However I am not able to make findings on disputes of fact. I have to act cautiously. We have very young children here. The important thing is having sorted out some of the roadblocks, if I can put it that way, that have presented in this matter in recent times when it has been before me.
   15. The father’s time with the children in the children’s best interests needs to be up and running. That time will need to be supervised. I am proposing to order that it be at the Toowoomba Contact Centre.
   16. I do not have any evidence from the paternal grandmother at this stage. The mother opposes her assuming the role of a supervisor.
   17. I am proposing to appoint an Independent Children’s Lawyer to represent these young children in these proceedings and I will hear from the Independent Children’s Lawyer at some future stage in relation to whether or not time should continue at the Toowoomba Contact Centre, however at this stage, as I said yesterday during the course of taking submissions, there is some value in the time being supervised at the Toowoomba Contact Centre because they do take detailed notes. Those notes will no doubt be subpoenaed at some stage and it may be helpful both with respect to either’s party’s case.
   18. Things are still raw in this matter. The parties are newly separated. What is important is that the children are afforded an opportunity to spend some time with their father which the mother accepts is in their best interests, in an environment where the potential for them to be exposed to any conflict is reduced. I am satisfied that that should be at the Toowoomba Contact Centre.
   19. Now, I appreciate that there are some practical issues that the mother raises on the evidence, given she resides at an undisclosed location, some distance away from Toowoomba. Whilst I understand travelling with young children can present issues, I am not persuaded that that is such a significant factor in this case that it suggests that I should order for time to occur at Fernvale which is a private centre and which would involve the father meeting costs of about $360 a fortnight on the mother’s proposal.
   20. Over and above the fact that there is no evidence before me that the father can afford it, the practical issues raised by the mother in relation to the children travelling do not outweigh the benefits to them of commencing to spend time with their father at the Toowoomba Contact Centre, and Mr McCormack did raise with me yesterday that they are more likely to get in quickly if that time is midweek. The children are not school age children. They are attending pre-kindy on Tuesday, Wednesday and Thursday.
   21. Whilst I accept that the father’s time should be weekly, which means that it is either a Monday or a Friday, if they cannot get in on a Monday or Friday, children age four and three missing out on pre-kindy on a Tuesday, Wednesday or Thursday, is not a significant issue for the court. It is pre-kindy we are talking about for a four year old and a three year old and that does not take precedence over spending regular time with their father. So if, for example, it was on a Wednesday and they had to miss out on two of their three attendances at pre-kindy, I do not view that as a significant issue on the evidence before me.
   22. I will appoint an Independent Children’s Lawyer. That will take a couple of months and I will bring the matter back.
   23. I want to hear from the Independent Children’s Lawyer. With respect to ordering a s.11F report, there might be some benefits to that however the children are young, the mother is raising allegations against the father and the father against the mother, whilst I do not have a closed mind about it, I am unclear on the benefits as opposed to a full Family Report. My inclination at this stage is to enable everybody to subpoena the material they need to subpoena. The Independent Children’s Lawyer may need to make some inquiries and then obtain a family report. That is my preference at this stage.
   24. I appreciate from the father’s perspective this is not a lot of time. I understand that. I acknowledge that. As I believe I said when the matter was before me, I am not making orders on a final basis. I am only making orders on an interim basis until such time as I have all of the evidence before me where I can make a decision in the best interests of the children on a final basis.
   25. It does not mean that if there is evidence and/or the Independent Children’s Lawyer, for example, feels that there might be some other supervisors who are appropriate in the circumstances and submissions are made to that end which will increase the father’s time with the children, then it does not mean that he cannot come back to the court and seek that. However, at this stage I am satisfied these orders will afford the father regular time with the children. It will be two hours weekly.
   26. There is certainly nothing optimal about the situation that exists between these parents, sadly, at the moment, however, there may need to be drug testing undertaken. There may need to be subpoenaed documents from various hospitals. There is a bit of work to be done in this matter before the Court is in a position where it can make orders on a final basis.
   27. I am conscious of the provisions of s.61DA(1) that provide a presumption in favour of equal shared parental responsibility. I do not propose at this interim stage to make that order. There are allegations by both parties that may impact upon the making of that order. As I said, it is early days. These are interim proceedings.
   28. So I will not make that order and because I am not making that order today, it is not necessary for me to consider the parenting structures set out in s.65DAA, unless the evidence suggests that the best interests of the children warrant a consideration of those parenting structures. Based on my discussion of the evidence and for the reasons given neither structure is an outcome that the court could conclude would be in the best interests of the children at this stage.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully.

Associate: vgm

Date: 17 December 2019