Abercrombie & Damon (No 3)

Case [2021] FCCA 682

FEDERAL CIRCUIT COURT OF AUSTRALIA

Abercrombie & Damon (No 3) [2021] FCCA 682

File number(s): DGC 3440 of 2011
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 8 April 2021
Catchwords: FAMILY LAW – Parenting – dispute over order for equal shared parental responsibility – live with orders for the children – dispute over time spent orders for the children – evidence of family report writer – position of the Independent Children’s Lawyer – final orders in the children’s best interests
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 62G, 65DAA, 69ZT, 102NA
Cases cited:

Abercrombie & Damon [2019] FCCA 3543

Abercrombie & Damon (No.2) [2020] FCCA 910

Sanders & Sanders (1976) FLC 90-078

Albert & Plowman [2020] FamCAFC 23

Adamson & Adamson (2014) FLC 93-622

Goode & Goode (2006) FLC 93-286

MRR & GR (2010) 240 CLR 461

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Sigley & Evor [2001] FamCAFC 22

R&R: Children’s Wishes (2000) FLC 93-000

Dundas & Blake [2013] FamCAFC 133

Vallans & Vallans [2019] FamCAFC 260

Heath & HemmingNo. 2 (2011) FamCA 749

Johns & Jasapas [2016] FamCA 471

Wang & Dennison (No.2) [2009] FamCA 1251

In the Marriage of JD & BG (1994) 18 FLR 255

In the Marriage of Patsalou (1994) 18 FLR 4260
Number of paragraphs: 186
Date of last submission: 26 March 2021
Date of hearing: 8 & 9 February 2021
Place: Dandenong
Counsel for the Applicant: Ms Agresta
Solicitor for the Applicant: Cathleen Corridon & Associates
Counsel for the Respondent: Mr Hale
Solicitor for the Respondent: Peter Lynch
Counsel for the Independent Children's Lawyer: Mr Marchetti
Solicitor for the Independent Children's Lawyer: Bowlen Dunstan & Associates

ORDERS

DGC 3440 of 2011
BETWEEN:

MS ABERCROMBIE

Applicant
AND:

MR DAMON

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS THAT:

Parental Responsibility for X and Y

1.Subject to sub-paragraph (2) below, the applicant mother, Ms Abercrombie, have sole parental responsibility for the children, X born in 2007 (“X”), and Y born in 2011 (“Y”) (“the children”).

2.Prior to making any final determination with respect to the children’s long term care, welfare, and development, pursuant to sub-paragraph (a) above, the mother shall:

(a)advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);

(b)seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;

(c)consider any response provided by the father prior to making a final decision; and

(d)advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.

Parenting and time spent arrangements

3.The children live with her mother.

4.The children spend time and communicate with the father at such times as agreed between the parties in writing and failing agreement as follows:

(a)during school term…

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AGLC
Abercrombie and Damon (No 3) [2021] FCCA 682
Case
[2021] FCCA 682
Decision Date

CaseChat Overview and Summary

This case concerns parenting orders made by O'Sullivan J in the Federal Circuit and Family Court of Australia. The dispute was between Ms Abercrombie, the applicant mother, and Mr Damon, the respondent father, regarding the parental responsibility and time spent arrangements for their two children, X and Y.

The court was required to determine the best interests of the children, X and Y, in relation to their long-term care, welfare, and development. This involved assessing the nature of the relationship between the children and each parent, the extent to which each parent had participated in decision-making and communication regarding the children, and the children's own expressed views. The court also considered the impact of past events and the parents' conduct on the children's welfare.

O'Sullivan J applied the principles of the *Family Law Act 1975* (Cth), particularly focusing on the paramountcy of the children's best interests. The court considered the recommendations of the Independent Children's Lawyer, which were largely adopted, and the evidence presented, including the children's wishes which were described as enjoying their "break" with the father. The court found that the children had a loving relationship with both parents and that the mother was the primary carer. The father's credibility was called into question by his evidence, particularly regarding the paternity of the younger child, Y, which he raised late in proceedings. The court noted that children learn behaviour from their parents and that a parent using violence or denigration is not a suitable role model.

The court made final parenting orders, granting the mother sole parental responsibility for the children, subject to specific requirements for the father to be consulted on decisions. Detailed arrangements were set out for the children to spend time and communicate with the father, including provisions for school holidays and special days. The court also made orders regarding changeovers, communication between parents, and the use of a parenting app, as well as requiring both parents to complete a "Parenting After Separation" program. The appointment of the Independent Children's Lawyer was discharged, and all extant applications were dismissed.

Orders

Orders of the court

DGC 3440 of 2011

BETWEEN:

MS ABERCROMBIE

Applicant

AND:

MR DAMON

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS THAT:

Parental Responsibility for X and Y

1. Subject to sub-paragraph (2) below, the applicant mother, Ms Abercrombie, have sole parental responsibility for the children, X born in 2007 (“X”), and Y born in 2011 (“Y”) (“the children”).

2. Prior to making any final determination with respect to the children’s long term care, welfare, and development, pursuant to sub-paragraph (a) above, the mother shall:

(a) advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);

(b) seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;

(c) consider any response provided by the father prior to making a final decision; and

(d) advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.

Parenting and time spent arrangements

3. The children live with her mother.

4. The children spend time and communicate with the father at such times as agreed between the parties in writing and failing agreement as follows:

(a) during school term periods, subject to and conditional upon Order 5 below, from 4:00pm on Friday (or the conclusion of school) until the commencement of school (or 9.00am) on Monday, in each alternate weekend commencing on the first Friday of Term 1 in each school year;

(b) by telephone each Wednesday between 6:00pm to 6:30pm, with the Father to place the call to the mother’s mobile, or such nominated number as shall be advised by the mother, and the mother to afford the children privacy during the call;

(c) for half of each of the school term holiday as agreed between the parties and in default of agreement as follows:

(i) for the first half in odd numbered years, from the conclusion of school (or 4.00pm) on Friday on the last day of term until 4.00pm on the middle Friday of the school term holidays;

(ii) for the second half in even numbered years, from 4.00pm on the middle Friday of the school term holidays until the commencement of school on the first day of next term; and

(iii) once the school term resumes the father’s time pursuant to order 4(a) hereof recommence as if the cycle was not broken.

(d) for one half of the long summer holidays, as agreed between the parents and in default of agreement, on a week about basis to occur as follows:

(i) in even numbered years, for the first week (i.e. 7 consecutive nights) from the conclusion of school (or 4.00pm) on Friday on the last day of term four to 4.00pm on Friday being the 8th day following the last day of school term in term 4 and each alternate week thereafter;

(ii) in odd numbered years, for a week (i.e. 7 consecutive nights) from 4.00pm on the Friday, being the 8th day following the last day of school term in term 4 to 4.00pm the following Friday and each alternate week thereafter; and

(iii) once the school term resumes, the fathers’ time pursuant to order 4(a) herein is to recommence as if the cycle was not broken.

(e) in the event the children are not otherwise in the father’s care, from 5:00pm on the Saturday preceding Father’s Day to 6:00pm on Father’s Day;

(f) from 10:00am to 6:00pm on the father’s birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm;

(g) on the children’s birthday for not less than two (2) hours on a school day and failing agreement from the conclusion of school to 6:00pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;

(h) from 3:00pm on Christmas Day 2021 to 6:00pm on Boxing Day 2021 and each alternate year thereafter;

(i) from 10:00am on Christmas Eve 2022 to 3:00pm on Christmas Day 2022 and each alternate year thereafter;

(j) from 10:00am on Easter Sunday 2021 until 6:00pm on Easter Monday 2021 and each alternate year thereafter;

(k) from 10:00am on Easter Saturday 2022 to 10:00am on Easter Sunday 2022 and each alternate year thereafter; and

(l) from 10:00am on New Year’s Day, 1 January 2022 to 6.00pm on 2 January 2022 and each alternate year thereafter;

(m) from 10:00am on New Year’s Eve 2022 until 10.00am on New Year’s Day in 2023 and each alternate year thereafter; and

(n) at such further and other times as agreed between the parties in writing.

5. For the purpose of order 4(a) above, such time is subject to and conditional upon the father delivering the children to school on time as required on Monday mornings. In the event the father is not able to deliver the children on time on Monday mornings, then time in the alternate week arrangements shall conclude at 6.00pm on Sunday. In the event that the father is not able to drop the children off at school on Monday morning the father is to provide at least 24 hours’ notice to the mother prior to his time with the children commencing on the Friday.

6. The mother be at liberty to contact the children by telephone from 6.00pm to 6.30 pm on Wednesday during the time the children are in the father’s care pursuant to order 4(c) and (d) herein with the mother to call the children’s phones and the father to afford the children privacy during the call.

7. In the event that the children are not in the mother’s care, the father’s time with the children be suspended as follows:

(a) on Mother’s Day weekend from 5:00pm on the Saturday preceding Mother’s Day until 6:00pm on Mother’s Day;

(b) from 10:00am to 6:00pm on the mother’s birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm;

(c) on the children’s birthday and the children’s siblings birthdays from the conclusion of school to 6:30pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;

(d) in 2021, from 10:00am on Christmas Eve until 3.00 pm on Christmas Day and each alternate year thereafter;

(e) in 2022, from 3.00pm on Christmas Day until 6:00pm on Boxing Day and each alternate year thereafter;

(f) in 2021, from 10:00am on Easter Saturday to 10:00am on Easter Sunday and each alternate year thereafter;

(g) in 2022, from 10:00am on Easter Sunday to 6:00pm on Easter Monday and each alternate year thereafter;

(h) in 2021, from 10:00am on New Year’s Eve until 10:00am on New Year’s Day in 2022 and each alternate year thereafter; and

(i) in 2022, from 10:00am on New Year’s Day until 6.00pm 2 January in 2023 and each alternate year thereafter.

Changeover

8. Changeover, save as may be agreed between the parents in writing (including by way of SMS text message), shall occur as follows:

(a) from the children’s schools and when school is not in session, in the C McDonalds/Woolworths car park on the corner of D Street, Suburb E, at the commencement of the children’s time with their father;

(b) at Suburb F Park, at G Street, Suburb F, at the conclusion of the children’s time with their father; and

(c) both parties be at liberty to use a nominee for the purpose of changeover.

Communication

9. The parents shall forthwith utilise the ‘Our Family Wizard’ app, at their individual expense, to assist with communication regarding the children’s health, education and progress.

10. The parents shall authorise and direct the schools at which the children attend to forward copies of reports, photographs, newsletters and the like to the other, at the sole expense of the recipient.

11. The parents keep the other advised in writing of their respective contact details.

12. The parents shall promptly advise the other parent of any serious illness, accident or injury suffered by the children, and keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attend to discuss the children’s medical condition with, and forward copies of any reports and the like to, the parties; and, each shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s; and, each shall attend any education sessions that will facilitate care of the children;

13. The parents shall be at liberty to attend the children’s schools on such occasions as would be usual for a parent to attend, including but not limited to parent/teacher interviews, sports events, school concerts and the like and neither party shall approach the other, unless otherwise agree between the parties by the exchange of text message.

14. The parents, their agents and/or servants be and are hereby restrained from:

(a) denigrating the other in the presence or hearing of the children;

(b) discussing these proceedings in the presence or hearing of the children;

15. Each of the parents do all things necessary to enrol in and complete as soon as practicable a ‘Parenting After Separation’ program at ‘H Centre, Suburb J or Suburb EE, at their respective cost, and to provide the other with a certificate of completion of same.

16. The parties be at liberty to communicate with the children’s treating medical practitioners and/or treating professionals who is/are treating the children and this Order acts as an authority for same.

General

17. The appointment of the Independent Children’s Lawyer be discharged.

18. All extant applications be otherwise dismissed and removed from the pending cases list.

19. 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 and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Nonetheless, for the reasons set out below, the best interests of both of the children are more likely to be promoted by final orders as proposed by the Independent Children’s Lawyer (except where indicated).BACKGROUND To put the current proceedings in context, it is necessary to set out the following background. The parties commenced their relationship in 2005 (when the mother was in her early twenties and the father in his early thirties) and lived at the father’s property in Suburb JJ. They married in 2006 and separated (for the first time) in December 2006 before reconciling in February 2007. The oldest child, X was born in 2007. After this, there was a second separation and then another reconciliation at the end of that year. The parties finally separated in 2008 and the mother and X eventually moved to rental accommodation whilst the father remained living in the Suburb JJ property. The father subsequently purchased a property in Suburb K. The father’s mother died in 2010. It is not contested that the parties on at least one occasion after separation, resumed a sexual relationship. Y, the youngest child was born in 2011 and has since then (and at least until the trial of these proceedings) been regarded as the biological child of the parties. The father filed a divorce order application in October 2011. A divorce order was subsequently made in December 2011. As had been the case since separation the children continued to spend time with the father which the parties negotiated between themselves. On 25 September 2012, the mother told the father she had a “new man”. On 28 September 2012, the father attended the mother’s home and left smashed photo frames, other mementos and various self-centred declarations (of inter alia his love for the mother) in shaving cream on the walls at the front of her house (Exhibit A5). In November 2012, the father sought an intervention order against the mother’s new partner, Mr B. However, this application was withdrawn by the father in December 2012. By that time the mother and the children had moved to live with Mr B. In January 2013, the mother commenced proceedings for property settlement orders under the Act. By this time, the father had moved to what he has described as his “dream home” in Suburb K. Prior to the mother’s application coming before the Court for the first time (and the father filing a response) the mother and father were involved in a heated exchanged outside the eldest child’s school (on the child’s first day at school). They continued that exchange later on the roadside (as the mother had pulled over as she was concerned that father would find out where she lived) during which the mother said “keep your god damn fucking house, alright…and if you go after my kids, Mr Damon…I swear to God…I will destroy you.” The father then filed a response to the mother’s application on 27 February 2013 and also sought parenting orders for the children. The parties filed an amended application and an amended response the following month.

Evidence

Evidence Before The Court

The Report then went on to make the following “Recommendations”:128.It is recommended at this time that Ms Abercrombie and Mr Damon share parental responsibilities for X and Y.129.It is recommended that at this time X and Y live with Ms Abercrombie.130.It is recommended at this time that until the allegations can be tested, X and Y spend time with Mr Damon two out of every three weekends from Friday after school to the start of school Monday as well as in the fortnight in between on the Thursday from after school to the start of school Friday, as well as half of all school holidays and times on the special days through the year.131.It is recommended that Ms Abercrombie and Mr Damon attend a post separation parenting program at an accredited agency such as a Family Relationship Centre, O Counselling or T Family Services.132.It is recommended that Ms Abercrombie and Mr Damon use an App such as ‘Our Family Wizard’ or other such app available online to assist with their communication.EVIDENCE AT TRIAL In Sanders & Sanders (1976) FLC 90-078, it was said:[R]estraint is called for in expressing views about the parties because of the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children. The Court is reluctant to make an adverse credit finding in respect to a party’s credit in parenting proceedings: see Adamson & Adamson (2014) FLC 93-622 at 79,703. However, in order to be able to determine this dispute over parenting orders for the children, where those otherwise responsible have asked the Court to make decisions, affecting those children, it is necessary to form an assessment of the character and the personality of the parties in this case. Both parties sought to attack the conduct and communication of the other. As has already been noted, the father, had in the days leading up to the trial, sent a series of text messages to the mother. Due to the existing interim intervention order, Counsel for the father sought a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) for his client. It is of course trite to observe that giving evidence can be a stressful experience. However, even allowing for that, the father (even with the protection of that certificate) was a truculent witness who did little to conceal his sense of grievance. Suffice it to say that the father’s presentation was entirely congruent with the Psychiatrist’s observations referred to earlier. The father’s credibility, for reasons to which I will return, was called into question by his own evidence on important issues before the Court and was found wanting. One example at this stage will suffice to illustrate why that is the case. During the course of cross-examination the father asked the Court to accept that he now believed that Y may not be his biological child. This was despite the fact that he had never raised the issue formally in either these proceedings or when the previous final orders were made in 2014. The father asked the Court to accept that he had been “suspicious” since 2015 and having thought “long and hard” about the matter decided to raise it formally only in cross-examination. Such an explanation strains the bounds of credulity.

Decision

Reasons for decision

As set out above, the Independent Children’s Lawyer adopted some of the minor amendments to the orders he contended for (as suggested by the mother in her final submissions) which I am satisfied will assist in removing or eliminating potential grey areas and minimise any likelihood of future disagreements. Accordingly, and for the reasons set out above, the Independent Children’s Lawyer’s proposals (supported by the mother) are to be preferred and more likely in to be in the children’s best interests.CONCLUSION Whilst I do not doubt things would be challenging in the mother’s household (particularly having regard to the demands imposed by parenting the other four children) there is no evidence that the children are not well cared for. They are progressing well at school and enjoy their time with the father. Without wishing to inflame what appeared to be the father’s unbridled sense of grievance, and whilst I was left in no doubt that the Department’s intervention caused him enormous distress, this was not and could never have been a review of or appeal from decisions made by the Department or the orders made by Victorian State Courts. This is the case as there are other avenues of appeal and there were no witnesses called from the Department (who had declined the request that they intervene in the proceedings) and the difficulties with second guessing decisions made by the Department without all the information are readily apparent from the evidence given by the report writer. It behoves the father to reflect on the observation that children learn their own future behaviour and how they deal with difficult situations from what they observe of their parents. In this regard a parent who uses violence against another person as a means of resolving a dispute, who is denigrating of another person especially the other parent or who engages in family violence, is not a suitable role model for children.[7] Finally, the father may rue having made the allegations about Y’s paternity that he did during the course of these proceedings. To that end I agree with the rhetorical point made in the final paragraph of submissions filed on his behalf.[7] see In the Marriage of JD & BG (1994) 18 FLR 255 and In the Marriage of Patsalou (1994) 18 FLR 426. I will make the orders as set out at the beginning of these reasons for decision as I am satisfied they are in the children’s best interests.

Ratio Decidendi

Legal Principle Established

I find that whilst the father would benefit from further attendance upon a counsellor with respect to anger management after the experience of the trial (and as the Independent Children’s Lawyer did not seek such an order) it is hoped that he would voluntarily seek such assistance.ADDITIONAL CONSIDERATIONSAny views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views; The Court may inform itself of the views expressed by children by having regard to anything contained in the Report given to the Court by a family consultant or other expert (such as the report writer) or through the Independent Children’s Lawyer and I do so. The Full Court in R&R: Children’s Wishes (2000) FLC 93-000 said that the wishes of the children are important and proper weight should be attached to any wishes expressed by the children, depending on their basis and the maturity of the children. Importantly, it was made clear the overall welfare of the children is the determining factor. I am satisfied that the children’s views are clear and that, in the circumstances of this case, they are views upon which the Court should place weight. I am not satisfied on the evidence that the children’s preference is for any significant increase in time with the father and I note the words of the children (given voice to by the father in his evidence before the Court) that they enjoy their “break with him”.The nature of the relationship of the children with each of the children’s parents; and other persons (including any grandparent or other relative of the children); I find that the children have a loving relationship with each of their parents. I find that the children have always lived with the mother and she is the children’s primary carer. She has been so at least since the parties’ separation, a period which encompasses either the majority (or the whole) of the children’s lives. I find also that the children are confident in having the majority of their day to day needs met in both of their parents’ households and they enjoy the time they have with the father which he gave evidence they describe as their “break”.Extent to which the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children; Final parenting orders have been in place with respect to the children’s day-to-day care since the consent orders made in July 2014. Since then the children have been subject to orders made in the Victorian Children’s Court and since these proceedings commenced interim orders. The children are living with the mother and have now been spending substantial and significant time with the father since interim orders were made in these proceedings (and after their time under the previous final orders had been interrupted by the involvement of the Department).