Adkins and Cape
[2018] FCCA 127
•6 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADKINS & CAPE | [2018] FCCA 127 |
| Catchwords: FAMILY LAW – Parenting – one child aged 3 years – volatile relationship between mother and father – whether the child should spend overnight time with the father – whether the father poses an unacceptable risk of harm to the child – whether the child suffers from anxiety/night terrors to the extent it would prevent overnight time with the father – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS ADKINS |
| Respondent: | MR CAPE |
| File Number: | SYC 64 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 14 August 2017 |
| Date of Last Submission: | 14 August 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 6 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Cole & Butler Solicitors |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A |
ORDERS
Parental Responsibility for the child
The mother have sole parental responsibility for the decisions related to the child X born (omitted) 2014 (“the child”) and the mother shall prior to making a decision on major long term issues in terms of parental responsibility;
(a)Use her best endeavours to advise the father in writing (via email or text message) of the decision intended to be made and the reasons for that decision;
(b)Seek the father’s views in relation to that decision;
(c)By reference to the best interests of the child, consider any timely response made by the father to the making of that decision;
(d)Advise the father in writing as soon as reasonably possible of the ultimate decision.
Time with the child
The child lives with the mother.
The child spends time with the father as agreed in writing, but failing agreement as follows:
(a)On alternate weekends from 9.00am Sunday to 4.00pm, Monday for six (6) months;
(b)After the time at Order 3(a) above, on alternate weekends from Friday 4.00pm to Sunday 5.00pm;
(c)Until the child commences preschool, for one seven (7) day period each year with the father to provide two (2) months written notice of the dates he wishes to have the child;
3.1.During gazetted school terms – once the child commences pre-school:
(a)In even years, as agreed to between the parents but failing agreement, the first half of the gazetted term 1,2,3 and Christmas school holidays commencing from 9.00am the first days of the school holidays to 5.00pm of the middle Sunday of the school holidays;
(b)In odd years, the second half of the gazetted term 1,2,3 and Christmas school holidays commencing 9.00am on the middle Sunday of the school holidays to 5.00pm on the last Sunday of the school holidays immediately prior to the commencement of the school term;
(c)During gazetted term holidays the order at 3(b) above is suspended and order 3.1(a) and 3.1(b) take precedence.
The parties are to use a communication book that shall travel with the child during the ‘spend time with’ arrangements. The book is to enable the parents to communicate and discharge their obligations in accordance with the terms of these Orders.
Changeover for the child
For the purpose of changeover, the father shall meet the mother or her nominee, who is a person known to the child, at an agreed location as agreed between the parents, but failing agreement, at (omitted) McDonalds at the commencement and conclusion of time in accordance with these orders.
Communication with the child
The father have FaceTime (or other form of video calls) with the child as agreed to between the parties, but failing agreement each Tuesday and Thursday between 6.00pm and 7.00pm, with the father to initiate the call and the mother to facilitate and ensure that the child is available to receive that call. The father is to note that the reference to telephone/video calls occurring between 6.00pm and 7.00pm does not mean that the child is to be kept on the call for a full hour and it only means that the call is to be placed between those times.
Specific parenting issues
The father and mother are to keep the other advised of each other’s telephone numbers and any change of telephone numbers forty-eight (48) hours prior to or from any such change.
The father and the mother are to keep the other advised of each other’s residential address and any change of residential address forty-eight (48) hours prior to or from any such change.
The father and mother are to advise each other immediately in the event that the child suffers any serious illness or injury whilst in their respective care.
The father and the mother are to advise the other and authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other parent and provide copies of all medical reports and correspondence in respect of the child’s medical conditions and/or requirements.
The father is authorised to ring the proper officer of the school or day care centre at which the child might attend from time to time to receive copies of all school reports, notices, newsletters and memoranda, order forms for school photographs and other like publications ordinarily provided to parents.
The father and the mother are restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating each other or any member of each other’s family or household in the presence or hearing of the child or from permitting another person to do so.
The father and the mother are restrained by injunction from discussing the family law proceedings and/or any related proceedings with the child or in the presence or hearing of the child.
Both parents will respect and encourage the child and help support, develop and build appropriate relationships with family and friends and respect the other parent’s parenting style in the presence of the child and agree to remove the child from any form of family violence when the child is in their care.
The father and the mother are restrained by injunction from posting or sending derogatory messages electronically (via social media, Facebook, email, telephone or test message, etc) to the mother, father, maternal grandparents or such other persons that may be known to the mother or maternal grandparents.
Dispute resolution
The process to be used for resolving future disputes about the child or the terms or operation of these orders shall be as follows;
(a)A Family Dispute Resolution Practitioner/Mediator shall be appointed;
(b)The parents shall consult with the Family Dispute Resolution Practitioner/Mediator or a Family Relationships Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner/Mediator equally;
(d)In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner/Mediator and cannot agree on an alternate Family Dispute Resolution Practitioner/Mediator, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
(f)If the father fails to choose then the mother may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding order.
IT IS NOTED that publication of this judgment under the pseudonym Adkins & Cape is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 64 of 2016
| MS ADKINS |
Applicant
And
| MR CAPE |
Respondent
REASONS FOR JUDGMENT
Background
These proceedings concern parenting arrangements for the child X born (omitted) 2014.
The Applicant Mother commenced proceedings in January 2016 and at that time sought a recovery order.
The Respondent Father filed his material on 8 March 2015.
The mother was born on (omitted) 1990 and was 26 the time of trial. The father was born on (omitted) 1987 and was 30 at the time of trial.
The parties commenced a relationship in late 2013 or early 2014. At the time the mother was living in (omitted) and working full-time and the Respondent Father was working and living in (omitted), Queensland.
In (omitted) 2014 the mother discovered she was pregnant. The parties thereafter commenced cohabitation in (omitted) New South Wales from April 2014.
The parties agree that the relationship was a volatile relationship with both parties conceding that they both engaged in derogatory taunts of each other and that there was a good deal of arguing, yelling and screaming throughout the relationship and beyond.
The parties separated on 7 May 2015 when the mother returned to reside in (omitted).
On 9 May 2015 a Provisional Apprehended Domestic Violence Order was granted protecting the mother. The Provisional Apprehended Domestic Violence Order became an Interim Apprehended Domestic Violence order on 18 May 2015.
The mother attempted to reconcile the relationship with the father shortly thereafter.
In August 2015 the mother returned to live in (omitted) where she has remained.
Between August and November of 2015 the child was seeing her father each alternate fortnight including overnight time.
On 11 December 2015 the mother agreed for the child to spend two weeks with the father. The child was to be returned on 25 December 2015.
The mother alleges that the father withheld the child. The father alleges that he told the mother to come and pick up the child. Nevertheless the mother applied for and was granted a recovery order on 7 January 2016.
On 12 May 2016 orders were entered into by consent the provided for the child to spend time with her father each alternate Saturday and Sunday in (omitted). The Respondent Father had travelled to (omitted) to facilitate the child spending time with him each alternate weekend, sleeping in a swag beside his Ute on all but two occasions up to the time of trial.
On 23 May 2016 a Final Apprehended Domestic Violence order was put in place for a period of 12 months with the mother named as the person in need of protection.
Issues for determination
The issues for determination are as follows:
a)whether the father poses an unacceptable risk of harm to the child;
b)whether an order for equal shared parental responsibility should be made;
c)whether the father poses a risk of harm to the child by exposing her to family violence; and
d)whether the child suffers from separation anxiety and/or night terrors to the extent that it would prevent the child spending overnight time with the father.
The material
The mother relied upon the following documents:
a)Amended Initiating Application filed 19 April 2017;
b)Affidavit of the mother filed 9 April 2017;
c)Family Report of Ms A dated 24 October 2016; and
d)Notice of Risk filed 7 January 2016.
The father was self-represented at the time of trial and as a result had not filed a Case Outline. He informed the Court that he was relying upon the following documents:
a)Response filed 8 March 2016;
b)Notice of Risk filed 8 March 2016; and
c)The Affidavit of the father filed 12 April 2017.
A Family Report dated 24 October 2016 and authored by Ms A, family consultant, was also in evidence.
The law
As this is a parenting matter Part VII of the Family Law Act 1975 (Cth) applies. Guided by the objects and principles in section 60B and having regard to the child's best interests as my paramount consideration I must make orders that are in the best interests of the child.
Section 60CC of the Family Law Act 1975 sets out the matters I must consider.
The mother seeks an order for sole parental responsibility and the father seeks an order for equal shared parental responsibility. Accordingly I must have regard to section 61DA.
In the event that I make an order for equal shared parental responsibility then the provision of section 65DAA is triggered. In the event section 65DAA is not triggered then I may make such parenting order as I think proper pursuant to section 65D(1).
The Act does not prescribe the order in which I am to consider those sections.
I must of course consider those sections and make determinations based on an assessment of the evidence.
As I previously said the core principle is that a Court must regard the best interests of the child as paramount, but not sole, consideration.[1]
[1] Family Law Act 1975 (Cth) s 60CA.
The interplay between the core principle, the objects of the Act and the principles underpinning those objects was considered in Goode & Goode[2].
[2] [2006] FamCA 1346
In McCall and Clarke[3] the Full Court discussed that in seeking to address all of the relevant provisions of the legislation it is inevitable that there will be “dual considerations" of some matters.
[3] [2009] FamCAFC 92
In Starr & Duggan[4] the Full Court when considering the issue as to how to approach the legislative framework said this:
“However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.”
[4] [2009] FamCAFC 115
Of course section 60CC findings may also be very relevant in relation to consideration of section 61DA.
The evidence
The mother
The mother set out many allegations involving family violence in her Affidavit.
The mother alleged that the father physically assaulted her on 6 May 2015. The father was charged in relation to that allegation. The charge was dismissed after a final hearing where the mother did not give evidence.
The mother's evidence is that she left the father on or about 6 May and returned to (omitted). On 9 May the father attended the premises where the mother was residing, her parents’ premises, and knocked on the door. The mother said she was afraid and rang the Police. When the Police arrived the father had already left and as a result of the mother's allegations the police then granted a Provisional Apprehended Domestic Violence Order.
The mother says that notwithstanding the allegations of family violence she, once an order was in place protecting her, then attempted to reconcile with the father for the child's sake.
The mother says that the relationship continued to be marked by fighting and arguing between the two parents. The mother says she returned to (omitted) in (omitted) 2015 moving back in with her mother and father.
It is the mother's evidence that the father was angry at her decision to return to (omitted) and that he contacted her by text and via the land line attached to her parents’ home and made numerous threats.
The threats culminated in a charge of “contravene the Apprehended Domestic Violence Order” and “use carriage service to harass.”
Those charges were dealt with on 23 May 2016 when the father entered a plea of guilty and received a section 10, 2 year good behaviour bond for the contravene Apprehended Domestic Violence Order offence and a section 19B, 2 year reconnaissance for the use carriage service offence.
The mother provided evidence that she travelled to (omitted) each alternate weekend so as to facilitate overnight time between the child and the father. She further gives evidence that on one of those occasions the child stayed at the paternal aunt’s place whilst she and the father were again intimate.
The mother alleges that the father posted nude photos of her on Facebook.
The mother alleged that on 25 December 2015 the father forced her to get into a car with he and the child and that he thereafter drove around the (omitted) area before leaving her on the street where she then walked back to a park and called a friend to pick her up. The mother asserts that the father thereafter refused to return the child.
It is not in contest that a recovery order was made. The father however says the mother sought an order without notice to him and that he had invited her to pick up the child on numerous occasions prior to the order being made.
The mother alleged that the father had undiagnosed mental health issues. She further alleged that the father had posted an advertisement on gumtree in order to sell the child.
The mother made allegations about the father suffering from a mental health issue. The issue of the father's mental health was not pursued at trial.
There has never been any evidence presented to the Court in support of the mother's allegation regarding the “gumtree advertisement".
Once the recovery order had been made and until orders were made by myself on 12 May 2016 the child did not spend time with her father. The mother says this was as a result of the father continually playing “mind games".
On 24 June 2016 the mother made a complaint to the Police that the father had breached section 121 of the Family Law Act. Her evidence is that her lawyer wrote to the father advising him that he had breached section 121 of the Family Law Act.
The Police and the Director of Public Prosecutions Commonwealth investigated the complaint and no charges were laid.
The mother alleges that the father is a pathological liar.
The mother also gave evidence in her Affidavit that the child suffers from night terrors. The only evidence in support of that allegation is found at page 102A of her Affidavit which is a letter dated 14 September 2016 under the hand of provisional psychologist Ms K.
Having considered the contents of that letter I am not persuaded that the child has been diagnosed with any form of anxiety and/or with any night terrors. The letter seems to be a confirmation of matters reported to Ms K with no independent assessment having been undertaken. In those circumstances I attach no weight to the letter annexed at page 102A of the mother's Affidavit.
The mother gave evidence that the father had made a complaint to the (omitted) Police about the mother and was seeking the Police to charge the mother with making false statements under oath.
The mother’s allegations continue that the father was not paying child support however under cross examination admitted that the father was paying child support.
Whilst being cross-examined the mother agreed that the “psychological abuse" was through verbal abuse. She further agreed that she was verbally abusive towards the father sometimes.
The mother conceded that she had no evidence of any physical assault. The mother conceded that at no time did the father ever refuse to spend time with the child.
The mother agreed that she too yelled at the father over the phone and she denied that the reason why she stopped time between the child and the father was because the father arrived at changeover with another person for the first time.
The mother said she had evidence of the nude photos being sent on Facebook however no such evidence was ever presented to the Court.
The mother conceded that the father had in fact asked her to pick up the child prior to her application for a Recovery Order.
The mother conceded that the child had never been harmed in the father's care and that she was not worried about the child being in the father's care nor had she ever seen the child hurt whilst in the father's presence or that she had ever contacted the Police during the relationship.
The mother stated that she was of the view that the child enjoyed her visits with the father and that she talks about him and other members of the paternal family.
The mother could not proffer a reason as to why the child was not seeing the paternal family despite their requests to see the child. The mother also stated that she did not allow the paternal grandmother or paternal aunt to speak with the child because “I didn't know how the calls would go.”
The mother agreed that she did not provide the father with important medical information relating to the child's ear infection and acknowledged that would have been in the child's best interests to do so.
Overall after hearing and watching the mother give evidence I was not satisfied that she was truthful at all times. I believe that a number of the allegations raised in the mother's Affidavit were baseless and had no foundation or proof.
I formed the view that the mother's alleged fears of the father were over exaggerated and that she at times forgot those fears when it best suited her.
The father
The father being self-represented provided a short Affidavit. The father provided evidence that he was tired of having to respond to false allegations made by the mother and confirmed that he has reported those false allegations to the (omitted) Police and that he intends to pursue that case to the end.
The father’s Affidavit provides evidence of his capacity to provide for the physical needs of the child, the emotional needs of the child and the health of the child.
His Affidavit sets out that he had never been physically violent with the mother and that any verbal abuse was perpetrated by both he and the mother equally.
It is clear throughout the Affidavit that the father loves his daughter unconditionally.
The father was cross-examined about the incident that occurred on 6 May 2015 and confirmed that he refuted the allegations and pointed out that the charge of assault was dismissed.
It was suggested that he had intimidated the mother not to give evidence and he denied so doing. It was then put to him that she may not have given evidence because she wished to recommence a relationship with the father and the father said she might have wanted to and confirmed once again that there had never been any verbal abuse by him that was not in response to verbal abuse by the mother.
The father said he did not recall posting nude photographs on Facebook but conceded that anything was possible.
The father conceded and confirmed that he pleaded guilty to the allegations of threatening and harassing telephone calls to the mother and the mother's parents.
The father confirmed that he sought a DNA test stating “its 2017 women and men are not always loyal however there was never any doubt".
The father was asked to name what was bad about the mother and instead he listed a number of things that were good about the mother for example her loving care for the daughter, that she spends time with the daughter educating her, that she cleans her, clothes her and feeds her well and that she ensures that the child socialises with other children.
When cross-examined as to the posts about the mother being a child abuser the father conceded that he had posted them on Facebook because back then, at a time earlier in the proceedings, he believed the mother was. His evidence was however that the mother is no longer a child abuser.
The father confirmed that he had completed a parenting course and that he provided copies of certificates to the Court.
When asked about how he might deal with any alleged night terrors the father gave a very thoughtful and considered response which led me to believe that he was a very child focused parent.
Overall I was left with the impression that the father had become very frustrated by the Court proceedings. That frustration had led him to behave in the most inappropriate manner with regards to communication with the mother and extended maternal family members.
I formed the view that he had a complete disregard for the feelings of the mother and also that the mother had no regard for the father's feelings.
I was left in no doubt that the father would do all things he possibly could to love, care for and nurture the child.
The family report
The Family Consultant was concerned that the father was intimidating. The father is heavily tattooed including facial tattoos and is a large man.
The Family Consultant noted that the father has an aggressive approach to communication with others and in doing so referred to the telephone conversations and text sent to the mother and the mother’s parents. It was the Family Consultant's view that his overall demeanour was intimidating and that he was clearly angry with the outcome of the Court proceedings.
It was the Family Consultant’s view that the father was focused on his “right to have unsupervised time” and his anger over not seeing the child for five and a half months after the Recovery Order.
The Family Consultant notes the limitation to the report in that there was limited documentation and no subpoena material to clarify some of the issues.
The Family Consultant says at paragraph 96:
“Given the father's antagonism towards the mother and his comments about the mother stealing his daughter, the author of this report is reluctant to recommend overnight time"
I note the limitation of the Family Consultant. I do not agree that the father was antagonistic towards the mother nor that he was so angry with the mother that this should preclude any overnight time.
I note that the interviews for the report occurred on 5 October 2016 and that I heard this matter on 14 August 2017.
At the time the interviews were conducted the father had only just recently began seeing the child again as a result of the consent orders entered into on 12 May 2016.
I am of the view that over time any anger the father had towards the mother had subsided such that by the time I had the opportunity to witness the father and mother both in Court and giving evidence I formed the view that they were equally responsible for the dysfunctional relationship.
In those circumstances I do not place significant weight on the recommendations of the Family Consultant.
Assessment of the evidence with reference to the legislative provisions
Meaningful relationship
In McCall v Clarke[5] the Full Court said at 119:
“We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.”
[5] [2009] FamCAFC 92
Their Honours went on to say paragraph 121:
“In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski.”
After setting out the definition of meaningful and meaning Brown J in Mazsorski & Albright[6] said at 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis 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.”
[6] (2007) FAM CAF 520
I am satisfied on the evidence that this child will benefit from having a meaningful relationship with both of her parents. The evidence supports a finding that both parents have a good deal to offer this child and that they both care for and love this child unconditionally.
The dysfunctional relationship that the parents have currently has the potential to impact upon the child in the future and both would do well to educate themselves as to how they can properly communicate for the benefit of their child.
The need to protect
The evidence establishes a finding that both parents engaged in family violence as defined in section 4AB of the Family Law Act 1975 (Cth). The evidence also establishes a finding that the father engaged in harassing conduct through the use of a telecommunications device.
The evidence certainly establishes a finding that the father became frustrated throughout the court proceedings at times and vented his frustration towards the mother.
However, I was certainly satisfied after hearing the father give evidence that he has seen the error of his ways and how his poor communication with the mother and maternal family members is causing further difficulty with his relationship with his child. I note that the father provided an unreserved apology for his behaviour in writing to both the mother and the maternal family members.
I am satisfied on the evidence that the father will not engage in this behaviour in the future.
The evidence does not support a finding that the father will expose the child to family violence in his home. It does not support a finding that the mother will expose the child family violence in her home.
I am satisfied on the evidence that the family violence in this matter was situational family violence between the mother and father that occurred throughout the relationship and has continued by way of verbal derogatory taunts since separation. The evidence satisfies me that both parents now see how counter-productive that behaviour is.
Having considered all of the evidence and all of the allegations that have been made, I am not satisfied that there is a need to protect this child in either the home of the mother or the father from physical or psychological harm, from being subjected to, exposed to, abuse, neglect or family violence.
Views of the child
At the time of the trial the child was two and a half years old and at the time of the interviews with the Family Consultant she was younger and as a result her views have not been obtained.
Nature of the relationship
The Family Consultant provides evidence in her report of the primary attachment to the mother and of the attachment to the father.
The Family Consultant noted that the father interacted with the child appropriately whilst being observed by her.
The mother and father both give evidence that the child loves the father and enjoys spending time with the father.
The mother has been living with her mother and father for quite some time and as result I can infer that the child has a good stable secure relationship with her maternal grandparents.
The child has been prevented from seeing the paternal grandmother and paternal aunt, people who initially when the parties were together spent time with the child. I made an order on 14 August 2017 for the child to be able to spend some time with the paternal grandmother.
There was no evidence raised to suggest that the paternal family members were risks to the child.
I am satisfied on the evidence that the child has a primary attachment to the mother, a strong and secure relationship with maternal family members, a strong and secure relationship with the father and will be able to develop a strong and secure relationship with paternal family members in due course.
Attempt to be involved with the child
The evidence establishes as a fact that at various times both the mother and father have interfered with the others ability to spend time with communicate with and make decisions about the child.
Both parents however have consistently wanted to be as involved with the child as much as possible. I note that the father has been travelling to (omitted) since the orders of May 2016 and generally sleeping out with his swag so as to ensure that he spends as much time with his daughter as possible.
Obligation to maintain the child
The evidence supports the finding that the father is paying child support. The evidence supports the finding that otherwise both parents are doing all that they can to meet their obligation to maintain the child.
Likely effect of any changes
The mother proposes that the child live with her and spend day only time with the father until the child is five years old.
The father seeks orders for unsupervised overnight time each fortnight continuing throughout the holidays.
The child had been spending overnight time with her father until that time stopped as a result of the child being returned to the mother after a recovery order issued.
The child had spent approximately 5 weeks with the father prior to that order being made. The parents had agreed for the child to spend a two-week block period with the father.
The mother says that the child would not cope with overnight time due to the fact that she suffers from anxiety and night terrors.
As I said previously I place no weight on the letter from the provisional psychologist and cannot be satisfied that the child has been diagnosed as suffering anxiety. With regards to the night terrors, if they in fact occur, I was satisfied with the father’s response as to how he would deal with any such issue.
I am satisfied that the child would not be adversely affected if her circumstances changed such that she spent overnight time in the care of her father.
In circumstances where the child has a solid secure relationship with both of her parents I am satisfied that there would be limited impact on the child if orders were made allowing for overnight time at this stage.
Practical difficulties and expense
The mother lives in (omitted) and the father lives in (omitted). (omitted) is approximately halfway between the parents’ locations. The parents live approximately 2 hours and 15 minutes apart from each other by way of road travel.
There will be some practical difficulty and some expense as a result, however, I am not satisfied that that practical difficulty and expense will substantially affect the child's right to maintain personal relations with both parents on a regular basis.
The capacity to provide for the needs of the child
While there have been many accusations raised by both parents about the other parent's capacity to meet the needs of the child, the evidence does not satisfy me that I could make a finding that either parent lacks the requisite capacity to meet the needs of the child including emotional and intellectual needs.
The evidence does however establish a need for both parents to consider the manner and way in which they communicate with each other about issues relating to the child. At this time their level of communication is such that it would be disadvantageous for there to be a need for the parents to reach a consensus in relation to decisions.
Until such time as both parents acknowledge the role that they have played in the dysfunction in their relationship, they both may at times suffer from an incapacity to meet the emotional needs of their child.
There is no evidence that the child has been emotionally harmed at this stage and overall the evidence supports a finding that both have the capacity to meet the needs of the child.
Attitude to the child and responsibilities of parenthood
The evidence shows that both parents have at times put their interests above those of the child. The father was content to have the child in his care for five weeks without any time with the mother and that shows a lack of insight.
The mother has been content for a period of approximately five and a half months to withhold the child from the father in circumstances where the child had and has a relationship with her father that was developing due to a young age and this shows too a lack of insight on behalf of the mother.
Since the orders were made in May 2016 both parents have focused on the child and to their responsibilities as parents. The father has continued to seek more time with the child and the mother has continued to deny such time and this has caused some frustration and some angst between the parents.
Overall however the evidence establishes a finding that both parents now have a very good attitude towards the child and to their responsibilities as parents and they have both demonstrated this since the orders were made in May 2016 in the main.
Family violence
I have already discussed the issue of family violence and my findings in relation thereto. There was an Apprehended Violence Order in place from 23 May 2016 for a period of 12 months. That order has lapsed and there was no evidence to suggest that either party sought a further order.
The Apprehended Violence Order issued in circumstances where the mother had made allegations of assault against the father as result of an incident on 6 May 2015. The allegation of assault was ultimately not proven after a defended hearing. The father nevertheless whilst there was an order in place breached the order by making harassing telephone calls to the mother and maternal grandparents.
The father was not present in Court when the final order was made.
Other facts
The evidence supports a finding that the father has shown an unwavering desire to be as involved in his daughter's life as he can be.
He has moved from (omitted) to (omitted), taking on part-time employment to do so, so that he could be closer to his daughter and therefore ensure that he is available at all times for her.
The father has set up home with a bedroom fully furnished for the daughter and has provided evidence of same in his Affidavit by way of an annexure.
The father impressed as a person who simply wants to have the opportunity to be an influence in his daughter's life and overall impressed me as a genuine individual who was doing all that he could to play a part in his daughter's life.
The child is quite young at this time and will not commence school for a number of years yet to come. In those circumstances I am of the view that it is appropriate for the child to spend each alternate weekend with her father and one longer period of time up to 7 days with her father in each year prior to her attending school.
This is in my view age-appropriate and will enable the child to develop a stronger attachment to her father prior to attending school.
It would be, once the child attends school, age-appropriate for the child to thereafter spend alternate holiday time with both of her parents.
Parental responsibility
The evidence supports a finding that there has been family violence in this relationship between these parents.
In those circumstances the presumption does not apply.
The evidence further establishes a finding that at this current time the parents’ level of communication and co-parenting arrangement is dysfunctional to the extent that it would be disadvantageous for the child for the parents to have to reach consensus in relation to major decisions for the child. This could embroil the child in further conflict which, it is trite to say, may lead to psychological harm for the child if it were to continue.
In those circumstances and for those reasons I am also of the view that it is not in the best interests of this child for an order to be made for equal shared parental responsibility.
Having made those findings and noting that there will not be an order for equal shared parental responsibility, I need not consider section 65DAA.
For these reasons I am satisfied that the orders I have made are in the best interests of the child.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 6 February 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Costs
-
Procedural Fairness
0
3
2