ALVARAS & ALVARAS
[2020] FCCA 1678
•24 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALVARAS & ALVARAS | [2020] FCCA 1678 |
| Catchwords: FAMILY LAW – Parenting – parents agreeing children should live nine nights a fortnight with one parent and five with the other – dispute as to with which parent the children should primarily live. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS ALVARAS |
| Respondent: | MR ALVARAS |
| File Number: | MLC 1428 of 2017 |
| Judgment of: | Judge Riley |
| Hearing dates: | 4 and 5 May 2020 |
| Date of last submission: | 15 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Weil |
| Solicitors for the applicant: | Morgan Legal |
| Counsel for the respondent: | Mr Arnold |
| Solicitors for the respondent: | Carew Gartlan McClelland |
ORDERS BY CONSENT:
The mother and father have equal shared parental responsibility for X born in 2011 (“X”) and Y born in 2012 (“Y”).
ORDERS:
X and Y live with their mother.
X and Y spend time and communicate with their father as follows:
(a)each alternate week, from after school on Thursday to the commencement of school on Friday; and
(b)each other alternate week, from the conclusion of school on Thursday to the commencement of school on Monday.
ORDERS BY CONSENT:
X and Y spend one half of all of the school holidays with each of their parents at times to be agreed by the parents and, failing agreement, the first half with the father and the second half with the mother.
ORDERS:
Commencing in 2020, and in each even year thereafter, X and Y spend:
(a)from 5pm Christmas Eve to 11am Christmas Day with their mother; and
(b)from 11am Christmas Day to 5pm Boxing Day with their father.
Commencing in 2021, and in each odd year thereafter, X and Y spend:
(a)from 5pm Christmas Eve to 11am Christmas Day with their father; and
(b)from 11am Christmas Day to 5pm Boxing Day with their mother.
On X and Y’s birthdays:
(a)if X and Y are living with their mother, then X and Y spend time with their father from the conclusion of school (or 4:00pm on a non-school day) until 8:00pm;
(b)if X and Y are spending time with their father, then X and Y remain in their father’s care in accordance with these orders; and
(c)at any other times as agreed between the parents in writing.
ORDERS BY CONSENT:
Each year, on the birthday of B, X and Y spend with their father from 3pm (on a non-school day) or after school (on a school day) until 9am the next day.
X and Y spend time with their mother on Mother’s Day and on the mother’s birthday from 3:00pm to 9:00am the following day.
X and Y spend time with their father on Father’s Day and on the father’s birthday from 3:00pm to 9:00am the following day.
When changeover does not occur at school times, changeover take place at the C Primary School car park.
X and Y spend time with their mother and their father at such further or other times as are agreed between the parents in writing.
Both parents be at liberty to receive school newsletters, photographs, reports and other information usually disseminated to parents and to attend parent/teacher interviews, sports days and extra-curricular events ordinarily attended by parents.
The parents forthwith notify one another in the event that X and Y or either of them suffer serious illness or injury.
The parents keep each other informed of any issues affecting X and Y’s health as well as any procedures and/or operations to be performed prior to these procedures and/or operations being undertaken except in cases of emergency (with the parent in whose care X and Y are to notify the other parent immediately).
Each parent be at liberty to contact X and Y via telephone between 6.30pm and 7.30pm on a Friday while the children are in the care of the other parent and otherwise as agreed.
Each parent be restrained from denigrating, insulting or undermining the other parent to X and Y or either of them.
Each parent undertake and complete a Tuning Into Kids or Circle of Security parenting course within three months and their solicitors provide a certificate of completion to the solicitors for the other parent.
The mother undertake and complete a Parenting Orders Program within three months and her solicitors provide a certificate of completion to the solicitors for the father.
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 Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Alvaras & Alvaras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1428 of 2017
| MS ALVARAS |
Applicant
And
| MR ALVARAS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of X born in 2011 (“X”) and Y born in 2012 (“Y”). X is now 8 years old and Y is now 7 years old.
The trial of the parenting aspect of the proceeding took place on 4 and 5 May 2020, and written submissions were subsequently filed. The property aspect of the proceeding could not proceed on 4 and 5 May 2020 because the paternal grandfather, who was a party to the property aspect of the proceeding, and who was unrepresented, purported to file a large amount of poorly organised material shortly prior to the commencement of the trial.
At the request of the parents, the court pronounced final parenting orders in respect of X and Y on 20 May 2020 without simultaneously giving reasons. The parents requested that course because they had a property mediation scheduled for 21 May 2020, and considered that it would help with the resolution of the property aspect of their dispute if they knew the outcome of their parenting dispute.
In any event, the final parenting orders that were made on 20 May 2020 were as follows:
THE COURT ORDERS BY CONSENT THAT:
1.The mother and father have equal shared parental responsibility for X born in 2011 (“X”) and Y born in 2012 (“Y”).
THE COURT ORDERS THAT:
2.X and Y live with their mother.
3.X and Y spend time and communicate with their father as follows:
a.each alternate week, from after school on Thursday to the commencement of school on Friday; and
b.each other alternate week, from the conclusion of school on Thursday to the commencement of school on Monday.
THE COURT ORDERS BY CONSENT THAT:
4.X and Y spend one half of all of the school holidays with each of their parents at times to be agreed by the parents and, failing agreement, the first half with the father and the second half with the mother.
THE COURT ORDERS THAT:
5.Commencing in 2020, and in each even year thereafter, X and Y spend:
a.from 5pm Christmas Eve to 11am Christmas Day with their mother; and
b.from 11am Christmas Day to 5pm Boxing Day with their father.
6.Commencing in 2021, and in each odd year thereafter, X and Y spend:
a.from 5pm Christmas Eve to 11am Christmas Day with their father; and
b.from 11am Christmas Day to 5pm Boxing Day with their mother.
7.On X and Y’s birthdays:
a.if X and Y are living with their mother, then X and Y spend time with their father from the conclusion of school (or 4:00pm on a non-school day) until 8:00pm;
b.if X and Y are spending time with their father, then X and Y remain in their father’s care in accordance with these orders; and
c.at any other times as agreed between the parents in writing.
THE COURT ORDERS BY CONSENT THAT:
8.Each year, on the birthday of B, X and Y spend with their father from 3pm (on a non-school day) or after school (on a school day) until 9am the next day.
9.X and Y spend time with their mother on Mother’s Day and on the mother’s birthday from 3:00pm to 9:00am the following day.
10.X and Y spend time with their father on Father’s Day and on the father’s birthday from 3:00pm to 9:00am the following day.
11.When changeover does not occur at school times, changeover take place at the C Primary School car park.
12.X and Y spend time with their mother and their father at such further or other times as are agreed between the parents in writing.
13.Both parents be at liberty to receive school newsletters, photographs, reports and other information usually disseminated to parents and to attend parent/teacher interviews, sports days and extra-curricular events ordinarily attended by parents.
14.The parents forthwith notify one another in the event that X and Y or either of them suffer serious illness or injury.
15.The parents keep each other informed of any issues affecting X and Y’s health as well as any procedures and/or operations to be performed prior to these procedures and/or operations being undertaken except in cases of emergency (with the parent in whose care X and Y are to notify the other parent immediately).
16.Each parent be at liberty to contact X and Y via telephone between 6.30pm and 7.30pm on a Friday while the children are in the care of the other parent and otherwise as agreed.
17.Each parent be restrained from denigrating, insulting or undermining the other parent to X and Y or either of them.
18.Each parent undertake and complete a Tuning Into Kids or Circle of Security parenting course within three months and their solicitors provide a certificate of completion to the solicitors for the other parent.
19.The mother undertake and complete a Parenting Orders Programme within three months and her solicitors provide a certificate of completion to the solicitors for the father.
Matters to be determined
As can be seen, the first issue in dispute was with whom X and Y should live, with the mother submitting that it was in X and Y’s best interests to live with her and the father submitting that it was in their best interests to live with him. For the reasons expressed below, it was ordered that X and Y live with their mother.
Although it was not agreed that X and Y should spend time with their father as specified in order 3 above, that was because the father submitted that X and Y ought to live with him. The parents did agree that X and Y should spend time with whichever parent they did not live with as specified in order 3. In other words, the parents agreed that there should be a 9:5 arrangement, with overnight Thursday in alternate weeks and after school Thursday to before school Monday in the other week. The parents’ disagreement was about which parent X and Y should live with.
In addition, the father argued, and the mother disputed, that, in identifying week 1 and week 2, any holiday time should be ignored, and holiday time should proceed on the basis that fortnightly times are suspended. I did not accede to the father’s proposals in that regard, basically because it is an unnecessary complication.
In relation to Christmas, the parents agreed that X and Y should spend Christmas Eve to Christmas Day with the mother in even numbered years and with the father in odd numbered years and Christmas Day to Boxing Day with the mother in even numbered years and with the father in odd numbered years. However, the mother submitted that the changeover times should be 3pm on each of Christmas Eve, Christmas Day and Boxing Day, while the father submitted that changeover should be at 5pm on Christmas Eve, 12md on Christmas Day and 5pm on Boxing Day. For the reasons discussed below, it was ordered that changeover be at 5pm on Christmas Eve and Boxing Day and at 11am on Christmas Day.
In relation to X and Y’s birthdays, the mother proposed that:
a.if X and Y are living with their mother, then X and Y spend time with their father from the conclusion of school (or 4:00pm on a non-school day) until 8:00pm;
b.if X and Y are spending time with their father, then X and Y remain in their father’s care in accordance with these orders; and
c.at any other times as agreed between the parents in writing.
The father proposed that:
a.Commencing 2020 and each even year thereafter the children spend time from 3pm or after school on the child’s birthday as applicable until 9am the next day with the father, and from 9am or after school if applicable the next day until 9am the following day with the mother, and
b.Commencing 2021 and each odd year thereafter the children spend time from 3pm or after school on the child’s birthday as applicable until 9am the next day with the mother, and from 9am or after school if applicable the next day until 9am the following day with the father.
For the reasons discussed below, orders were made in accordance with the mother’s proposal.
Chronology
The parties provided to the court a joint chronology, which was agreed except where otherwise indicated, as follows:
Date Event 1982 Father born. 1985 Mother born. 2007 Father’s son B born. In or about 2010 Parties commenced cohabitation. 2011 X born. 2012 Y born. 2013 Parties marry. 20 June 2016 Mother says parties separate on the first occasion. 3 July 2016 Father says parties separate, initial parenting arrangements irregular but settle to five nights/ 14 with the father and shared school holidays. 8 October 2016 Application for intervention order filed by the Victoria Police on the mother’s behalf. 16 February 2017 Mother files initiating application seeking property orders. Late February 2017 Mother says parties reconcile their relationship. Father says two attempts at reconciliation occur, both for less than a week only. 9 March 2017 Mother instructs her solicitors to file a notice of discontinuance. Late March 2017 Mother says parties separate on a final basis. 23 May 2017 Final intervention order made listing the mother and children as protected persons. 13 March 2019 Father files amended response to initiating application and supporting material seeking children’s orders. 29 March 2019 Parties and children attend upon a family consultant, Ms D for the purpose of a child inclusive memorandum. 8 April 2019 Child inclusive memorandum released to the parties. 18 June 2019 Mother files trial affidavit. 18 February 2020 Family report completed by Ms D. 23 March 2020 Mother files trial affidavit. 16 April 2020 Father retains solicitors. 24 April 2020 Father files trial affidavit. 30 April 2020 Informal mediation between counsel and lawyers for the father and mother – matter did not resolve. 4 May 2020 Trial listed. 4 May 2020 Mother seeks an order to be made in accordance with the recommendation of the report and the status quo being 9/5 arrangement in her favour. 4 May 2020 Father seeks an order for a 9/5 arrangement in his favour.
It was not entirely clear from the chronology, but X and Y have been living with their mother for nine nights a fortnight for about two years. The family consultant recommended that that arrangement continue into the future.
The mother has lived with her new partner, Ms E, for two years. The parents agreed that Ms E is a stable and effective step-parent for X and Y, and has a good relationship with them.
The parents have a very poor relationship with each other and are not able to effectively communicate.
The mother alleged considerable family violence on the father’s part, being both physical violence and controlling and intimidating behaviour.
The father alleged that the mother distressed X by engaging in prolonged and tearful goodbyes. The father also alleged that the mother was a passive and ineffective parent and depended excessively on Ms E to care for and manage the behaviour of X and Y. It was common ground that Y continues to be abusive to the mother both verbally and physically.
Material relied upon
The mother relied on:
a.the child inclusive s.11F memorandum dated 8 April 2019;
b.the further amended initiating application filed on 30 May 2019;
c.her trial affidavit filed on 23 March 2020; and
d.the family report dated 18 February 2020.
The father relied on:
a.the child inclusive s.11F memorandum dated 8 April 2019;
b.his affidavit filed on 24 April 2020;
c.his amended response filed on 13 March 2019;
d.the affidavit of Mr F, the paternal grandfather, filed on 24 April 2020; and
e.the family report dated 18 February 2020.
Presentation in the witness box
The mother presented in the witness box as a somewhat tentative and anxious person. She gave convincing evidence about the family violence she had experienced, notwithstanding that some of the details have changed over time.
The father presented as a smug, overbearing, dominating and controlling person, who attempted to overbear, dominate and control the court and cross-examining counsel. He was often unwilling to give straight answers to straight questions. That is, he was often evasive. The father’s behaviour in the witness box gave substantial credence to the mother’s complaints about him.
The paternal grandfather presented in the witness box in a fairly straightforward and respectful manner.
The presentation of the family consultant in the witness box was unremarkable.
The application for an intervention order
On 13 October 2016, the police filed an application for an intervention order against the father on behalf of the wife. The application stated that:
THE AFM AND RESP HAVE BEEN MARRIED FOR 3 YEARS BUT SEPARATED 3-4 MONTHS AGO. THEY HAVE TWO CHILDREN TOGETHER BOTH UNDER THE AGE OF 5. THERE ARE NO FAMILY LAW CUSTODY ORDERS FOR THE CHILDREN AT PRESENT. A PREVIOUS FAMILY VIOLENCE INTERIM ORDER EXISTS BETWEEN THE TWO BUT HAS BEEN INACTIVE SINCE 09/09/14. TODAY ON SATURDAY THE 8TH OF OCTOBER 2016 AT APPROXIMATELY 4:40 THE AFM ATTENDED THE RESP’S FATHERS ADDRESS AT [XXX], SUBURB G TO DROP THE CHILDREN OFF TO BE WITH THEIR FATHER FOR THE WEEKEND. AFTER DROPPING OFF CHILDREN, RESP HAS ASKED TO SPEAK WITH AFM. THE RESP HAS THEN GRABBED THE AFM AROUND THE ARMS AND SQUEEZED TIGHT. THE AFM ASKED THE RESP TO LET GO BUT RESP REFUSED. THE RESP GRABBED THE AFM BUT THE NECK AND STARTED QUESTIONING HER REGARDING THE NATURE OF HER RELATIONSHIP WITH A FRIEND. THE RESP THEN PUSHED THE AFM OFF A VERANDA CAUSING HER TO FALL ON HER KNEES. THE AFM RAN TO HER CAR TO GET AWAY BUT WAS STOPPED AS THE RESP PUSHED HER IN THE BACK INTO THE VEHICLE. THE RESP HAS THEN GRABBED THE AFM BY THE WRIST AND ATTEMPTED TO TAKE THE CAR KEYS OUT OF HER HAND. THE AFM PUSHED AWAY AND GOT INTO HER VEHICLE AND DROVE AWAY. THE RESP BANGED ON THE DRIVER’S WINDOW OF THE VEHICLE AS THE AFM LEFT. THROUGHOUT THE INCIDENT THE RESP MADE STATEMENTS TO THE AFM SUCH AS “YOU’RE A PIECE OF SHIT”, “YOU’RE A WHORE”, “YOU’RE ONLY GOOD FOR A GOOD TIME” AND “YOU HAVEN’T SEEN THE WORST OF IT”. THE MATTER WAS REPORTED TO CONSTABLE H AT J STATION AT APPROXIMATELY 1900HRS. THE AFM STATES SHE IS SCARED OF WHAT THE RESP IS CAPABLE OF DOING TO THEIR CHILDREN AND HAS SIGNIFICANT CONCERNS FOR WHATTHE RESP MIGHT DO TO HER SHOULD HE LOSE HIS TEMPER AGAIN. POLICE ARE APPLYING FOR AN INTERVENTION ORDER TO PROTECT THE AFM AND HER CHILDREN FROM THE RESP AS WE HAVE CONCERNS FOR FUTURE VIOLENCE AGAINST THE AFM AND POTENTIALLY HER CHILDREN. NOTED AS SECTION SGT, COMPLAINT AND WARRANT AUTH BY A/HOURS. RESP TO BE INTERVIEWED WHEN C+W EXECUTED.
An interim intervention order was made on 13 October 2016, with the mother, X and Y as the affected family members.
A final intervention order was made for 12 months on 23 May 2017 protecting the mother, X and Y following a contested hearing.
The s.11F memorandum
A s.11F memorandum was prepared by Ms D on 8 April 2019: exhibit -5 to the affidavit affirmed by the mother on 20 March 2020; CB62. At that time, X was seven years old and Y was 6 years old. They were living nine nights a fortnight with their mother and spending five nights a fortnight with their father. The question for the family consultant was whether that arrangement should continue, or whether X and Y should spend equal time with each of their parents. The father at that time did not propose that X and Y should spend nine nights a fortnight with him, although that is his current proposal.
Ms D noted that:
a)the mother had been diagnosed with anxiety by her general practitioner and had been taking anti-depressants for six months;
b)the mother reported feeling very anxious and was tearful during the interview;
c)the father attempted to control and direct the interview at times;
d)there was a high level of entrenched conflict between the parents;
e)the Department of Health and Human Services (“DHHS”) did not have concerns for the safety and well-being of X and Y in the care of either parent;
f)while seeking an equal shared care arrangement, the father was not attuned to the needs of the children, rather prioritising his preference for fairness;
g)the parents each needed to attend a post-separation parenting program to gain insight into the impact of their high conflict on X and Y;
h)the father has a gun licence but denied having any guns in his possession;
i)X was a friendly, confident, articulate child who was in Grade 2;
j)she was happy with how things were but would not mind seeing her father more;
k)Y was a reserved but likeable boy who seemed distracted at times;
l)he was in Grade 1, and had recently become a School Council leader;
m)he liked spending time with his father, but wanted the amount of time to remain the same;
n)X and Y both said that they liked the mother’s partner; and
o)X and Y were warm and affectionate in interactions with their father and showed no fear of him.
Ms D’s principal recommendations were that:
a)X and Y continue to spend nine nights a fortnight with their mother;
b)changeover at a police station cease immediately, and instead occur at another public venue;
c)the parents complete a parenting orders program; and
d)the mother continue to see a counsellor to help her with her anxiety.
The DHHS memorandum from Ms K
Exhibit 1 was a report from Ms K of DHHS which was undated but which was released by chambers to the parents on 12 April 2019. It was clearly prepared on or after 8 April 2019, because it mentioned a contact on that date.
The report concluded that there was insufficient information to suggest that X and Y were at risk of significant harm in the care of either parent. The report also noted that X and Y both said that they were happy with the then current arrangement, whereby they spent nine nights a fortnight with their mother and five nights a fortnight with their father.
The report noted that the first report to DHHS regarding X and Y occurred on 9 July 2014, when the parents were still living together. The report said that:
a)the parents were intoxicated, had a verbal altercation, and the father pushed the mother, which resulted in her sustaining a cut to the back of her head;
b)the mother was admitted to the L Hospital for treatment; and
c)a Family Violence Safety Notice was issued and the matter was managed by M Family Violence Services, who continued to assist the mother until at least December 2017.
The report noted that the second report to DHHS occurred on 9 December 2016, when the parents were temporarily separated. The report concerned an allegation that the father slapped X and Y on the bottom with considerable force. DHHS considered that, although the father might have been using excessive lawful chastisement, the case did not warrant further child protection involvement.
The report noted that the third report to DHHS was made on 19 December 2018, when it was said that Y had disclosed that the father had taken a gun into Y’s room, and had exposed X and Y to cruelty to animals.
DHHS interviewed X and Y on 18 January 2019. They both spoke very positively about both of their parents and said that they did not feel unsafe with either of them.
The report noted that:
a)Y told DHHS that the father brought a gun into the bedroom of B, Y’s older half-sibling, and showed it to both B and Y;
b)X told DHHS that she had only ever seen a gun was in the father’s car and it was in a container; and
c)the father told DHHS at an interview on 1 February 2019 that:
i)he had a gun licence but did not own any firearms;
ii)if there had ever been a gun on his property it had been locked away in the shed and X and Y had not seen it; and
iii)the only time X and Y might have seen a gun is when he collected one from his father, transported it in his car and then put it in the shed.
The report also noted that:
a)the allegation of cruelty to animals was that the father had thrown a blue tongue lizard onto the fire in the presence of X and Y, which impacted on X emotionally;
b)the father said that:
i)the lizard had died;
ii)he put it in the fire to cremate it, in the absence of X and Y;
iii)he spread the lizard’s ashes with X; and
iv)she was upset it had died;
c)Y said that he did not know how the lizard died and he did not see it being burnt, but he did spread the ashes around; and
d)two or three budgies also died within a few days of the father buying them.
The report noted that the fourth report to DHHS was made on 29 January 2019 and concerned an allegation that B, who was about 11 years old at the time, had used a vacuum cleaner on Y’s private parts. DHHS interviewed X and Y about this at school on 31 January 2019.
X told DHHS that:
a)while they were cleaning the father’s convertible, B put the vacuum cleaner on X and Y’s hair and arms and then on Y’s private parts;
b)Y had his clothes on; and
c)the incident lasted about three seconds.
Y told DHHS that the incident did not occur and he could not remember it.
The father told DHHS that he had no knowledge of this incident, and said children do silly things sometimes.
Regarding the allegations about the gun, the cruelty to animals and the vacuum cleaner, DHHS decided on 6 February 2019 that X and Y were not at risk of significant harm in the care of either parent.
However, also on 6 February 2019, DHHS received another report alleging that the mother:
a)was using methamphetamines and alcohol in the presence of X and Y;
b)was engaging in sexual intercourse and other inappropriate behaviour in the presence of X and Y;
c)was working as an escort and prostituting herself;
d)was leaving X and Y alone at home, in a vehicle and on the street;
e)left Y in the boot of her car; and
f)had an unsafe home environment.
The mother was interviewed on 21 February 2019, when she denied all allegations, and said that X and Y had recently reported that the father had been smoking a special plant that was green and brown.
On 21 February 2019, DHHS asked the mother to complete a drug screen. She undertook the screen the same day, and it was negative for all substances. DHHS visited the mother’s home and had no concerns about her home environment.
On 28 February 2019, DHHS asked the father to undertake a drug screen. He did so five days later, on 5 March 2019. It was negative for all substances.
DHHS again interviewed the mother about putting X and/or Y in the boot of the car. She told DHHS that she would not put them in the boot of her car in any circumstances. She told DHHS that the father let X and Y ride quad bikes without helmets.
DHHS interviewed X and Y again at school on 1 April 2019.
Y told DHHS that:
a)he had never travelled in the boot of the car and had always used a booster seat and had a seat belt on;
b)he had only been left alone in the car with X when their father went into the bakery to buy donuts;
c)apart from that, he had never been left alone at home or elsewhere; and
d)he did not wear a helmet when riding a quad bike but his father had recently bought him one and he would buy X one too.
X told DHHS that:
a)she has never travelled in the boot of the car;
b)she had only been left alone in the car with Y when their father went into the bakery to buy donuts;
c)apart from that, she had never been left alone at home or elsewhere;
d)she does not wear a helmet when riding the quad bike; and
e)she sometimes feels unsafe riding the quad bike when her father goes fast.
DHHS interviewed the father on 8 April 2019. He denied letting X and Y ride the quad bike without helmets.
DHHS concluded that, in relation to the allegations made on and after 6 February 2019, there was insufficient information to suggest that X and Y are currently at risk of significant harm in the care of either parent. DHHS also noted that X and Y both indicated that they were happy with the current care arrangements and did not want anything to change. That is, they were happy with living nine nights a fortnight with their mother and five nights a fortnight with their father.
The family consultant’s report
As well as doing the s.11F report, Ms D also completed a family report. Ms D said in her family report that:
RISK FACTORS
Family Violence
17.Ms Alvaras alleged that Mr Alvaras was verbally and physically abusive and displayed some controlling behaviours during their relationship.
18.Mr Alvaras counter alleged that Ms Alvaras was physically and verbally abusive towards him during their relationship.
Child Safety and Wellbeing
19. DHHS note concern regarding allegations in relation to the children being exposed to risk of harm in the care of Mr Alvaras.
Drugs and alcohol
20. No current concerns were raised by either party regarding drugs and alcohol.
Mental Health
21. No concerns were raised by the parties in relation to mental health.
22.Ms Alvaras has a diagnosis of anxiety and is currently taking medication for this.
ISSUES IN DISPUTE AND ISSUES IDENTIFIED DURING ASSESSMENT
23.Key issues in dispute:
•The live with and spend time arrangements for the children.
Key issues that were identified during assessment:
•Concerns in relation to parenting combined with the parent’s different parenting styles and the impact of this on the children’s development.
•The co-parenting relationship and the effect of this on the children.
ADULTS
Ms Alvaras
24.Ms Alvaras arrived at the registry with the children and her partner, Ms E. Ms Alvaras presented as cooperative and pleasant. She appeared more in control of her emotions compared to her presentation at the S11F interviews. However, when saying goodbye to the children in the playroom, rather than keeping this brief as instructed, Ms Alvaras gave X an overly prolonged hug which appeared to trigger distress for X. X eventually became emotional and began crying as more time passed. At this point, Ms Alvaras was advised to leave the playroom promptly by staff which appeared to be difficult for her. She did not appear to be aware of how her behaviour in that moment was triggering X’s distress.
25.Ms Alvaras believes Mr Alvaras’ motivation for wanting more time with the children is financially motivated. She raised concern that he has not paid child support since 2018 and believes that this application is connected to his unwillingness to provide any financial support in the future.
26. In relation to the family violence in the parent’s relationship, Ms Alvaras reported a history of physical and verbal abuse and controlling behaviours during her relationship with Mr Alvaras. There were some inconsistencies in the version of events regarding the family violence that Ms Alvaras provided in her S11F interview compared to the family report interviews. Ms Alvaras described the worst incident of family violence as being when Mr Alvaras allegedly pushed her over and kicked her in the face at a party in 2014 whereby she sustained facial injuries. Ms Alvaras did not report this incident to the Police or visit her doctor following this event.
27.Ms Alvaras reported verbal abuse and name calling from Mr Alvaras in the relationship that sought to denigrate her sense of self such as “brainless bitch” and “fucking slut” that she reported occurred in front of the children. She also described controlling behaviours such as Mr Alvaras coercing her into sexual intercourse by using emotional manipulation. Ms Alvaras also reported being socially isolated in the relationship due to being at home with the children and that Mr Alvaras did not appear supportive of her having social relationships.
28.Ms Alvaras alleged that Mr Alvaras made some concerning comments regarding his ex- partner following his experience of family law proceedings in relation to his son, B. Ms Alvaras alleged that Mr Alvaras said comments such as “I will pay someone to rape B’s mum”, “I understand why these people throw their kids off bridges”. Whilst she felt it was very unlikely that he would harm X and Y, she felt this demonstrated his character.
29.In terms of her mental health, Ms Alvaras acknowledged that she has a diagnosis of anxiety and currently takes an anti-anxiety medication (Paroxetine) via her General Practitioner. She was unclear of the dose of this in interview. Ms Alvaras is not seeing any counsellors at this time and reported her mental health to be stable.
30.Ms Alvaras raised some concerns in relation to Mr Alvaras parenting and stated that she is still concerned that the children were riding on the back of his motorbike without their helmets but has since learned that they have obtained helmets. She also reported concern that Mr Alvaras does not seem to change the children’s bedsheets regularly and that the children have noticed insects in their bed.
31.Ms Alvaras mentioned that Mr Alvaras has not purchased any school uniforms or lunchboxes for the children which she believes indicates his lack of commitment to providing for their needs if they were to live primarily with him.
32.Overall, Ms Alvaras reported that the current parenting arrangement between Mr Alvaras and the children is going well. She would like it to remain as it is as she believes this is in the best interests of the children. Despite their history, Ms Alvaras seemed supportive of the children’s relationship with their father and of their time together.
Mr Alvaras
33.Mr Alvaras arrived alone at the registry. He presented as cooperative and displayed a direct communication style which was also evident in the S11F interviews. During his interview, Mr Alvaras demonstrated that he has a very efficient memory for dates, times and details. It appeared to cause him frustration that others are not as efficient with this skill. This was evident with his comments in relation to Ms Alvaras’ affidavit material which he alleged had many inconsistencies in terms of dates.
34.Mr Alvaras disputed Ms Alvaras’ version of events regarding the incident in 2014 at the party whereby Ms Alvaras reported she was pushed to the ground and kicked in the face by Mr Alvaras. He provided a different version of events where Ms Alvaras was trying to drive home intoxicated and that she attacked him. Mr Alvaras denied the other allegations of family violence and provided an equally plausible version of events regarding the incident involving an altercation that occurred between the parents at his father’s property whereby Ms Alvaras stated that Mr Alvaras pushed her off the veranda.
35.Mr Alvaras stated that he would like more time with X and Y and believed the time should be equal between the parties or that he should have majority care. He said that he would like “more influence” over the children due to concerns regarding possible inconsistencies in Ms Alvaras’ parenting style. He expressed concern that Ms E appears to be the primary parent and raised concern that if the relationship happened to break down with Ms E that Ms Alvaras may not be able to manage primary care of the children.
36.He raised concerns regarding Ms Alvaras’ apparent unwillingness to facilitate the children’s extracurricular activities such as attendance at sporting activities. However, he did not acknowledged the financial burden that this may cause for Ms Alvaras, particularly if she is not receiving any child support at this time. This appeared to be Mr Alvaras’ main concern in relation to Ms Alvaras’ parenting.
37.Mr Alvaras reported that Ms Alvaras agreed to equal shared care of the children following separation however, it has not occurred. He pointed this out as an inconsistency in regard to her personality whereby she provides mixed messages which Mr Alvaras described as being confusing.
Mr F and Ms N (paternal grandparents
38.Mr F and Ms N presented as cooperative and pleasant people who impressed as being primarily concerned with X and Y’s needs. They did not denigrate either parent during the interview.
39.They reported that they have a very close relationship with the children and that they see them regularly whilst in the care of their father. Mr F and Ms N raised multiple concerns in relation to X and Y in Ms Alvaras’ care. These included her not enrolling them in extra-curricular activities (such as sports for Y), calling the children every day whilst they on holidays with them and the father and allegedly bribing them with toys and endlessly saying that she misses them, and them also missing days of school. Mr F stated that when Ms Alvaras calls them every day on holiday and spends long periods of time telling them how much she misses them, it appears to cause the children distress and they become preoccupied with wanting to return to their mother’s care to obtain these toys. Ms N indicated that this behaviour demonstrates a lack of respect for the children’s emotional wellbeing as it appears to be about Ms Alvaras’ needs.
40.Mr F provided his version of events in relation to the family violence incident that occurred in 2017 on his front veranda. Mr F stated that he was inside and came outside when he heard raised voices and observed Ms Alvaras pushing Mr Alvaras and then she slipped off the veranda onto the ground. He denied seeing Mr Alvaras touch Ms Alvaras.
41.Mr F and Ms N also expressed concern regarding the amount of days the children had missed at school whilst in the care of their mother. They reported that it is often the case that when one of the children is sick in Ms Alvaras care that both of them are absent from school.
Ms E
42.Ms E presented as polite and accommodating. She impressed as very child focused and had a good understanding of their needs. She described that she has a very close relationship with X and Y and that she has been in a committed relationship with their mother for the last two years.
43.In relation to the parenting arrangements, Ms E believes that it would be better if they remained the same because the children seem settled with this arrangement.
44.Ms E explained that in the beginning, X displayed separation anxiety when going to her father’s house but stated that this has settled down now. She stated that Y was having angry outbursts at home towards Ms Alvaras but this has also reduced and that Ms E has been working to support Ms Alvaras with implementing clear boundaries and routines with him which appears to be helping with his behaviour.
45.Ms E believes Ms Alvaras’ mental health to be stable.
Adult relationships
46.To their credit, the parents appear to have made some progress in relation to their co-parenting relationship since the S11F interviews where the hostility between them was more apparent. They have a vastly different style of communication with Mr Alvaras being more direct and persistent which could be viewed as intimidating by Ms Alvaras who appears to have a more passive, non-directive style of communication. It is highly likely that these patterns of communication would have contributed to conflict and ongoing misunderstandings in the relationship.
47.However, the parents have been making an effort to communicate more amicably for the sake of the children. It is possible that this relationship could continue along this trajectory in the future after final orders have been obtained. Mr Alvaras has attended the Parenting Orders program and reported that this was useful in terms of his learning surrounding the co-parenting relationship. The children would benefit if Ms Alvaras also completes this course.
48.There appears to be a significant financial component to this dispute. Ms Alvaras believes that Mr Alvaras’ intentions are financially driven and that he is only seeking more time with the children in order to avoid financial loss. Ms Alvaras expressed her displeasure regarding the fact that Mr Alvaras has not paid child support since 2018. Mr Alvaras stated that he has not paid child support because Ms Alvaras has not lodged a claim for it via Child Support Agency.
CHILDREN AND THEIR RELATIONSHIPS
X
49.X (8 years, 2 months) presented as slightly more reserved than she was in her S11F interviews. Despite this, she spoke confidently in interview regarding her views. X said she is aware of why she was present for interview again because she watched a video about it that her mother showed her.
50.X is in Grade 3 at school. She had only just begun the school year and reported it to be going well. In terms of her time with each parent, X could not name any negative things about her time with either of her parents and reported that she enjoys spending time with both of them. She stated that she has a good relationship with her half-brother, B and also enjoys spending time with him at her father’s house.
51.In regards to the parenting arrangements, when asked about the idea of spending equal time with both parents, X stated that “I sort of want it to stay the same”. She acknowledged that it is hard to be away from each parents when spending time at the other parents’ house and that she “loves them both a lot”.
52.X described a close relationship with her paternal grandparents and stated that she is happy to be going for dinner to the pub with them that evening. She stated that she is “sort of close” with her maternal grandmother.
53.In terms of her parent’s relationship, she stated that she didn’t think they did like each other much but stated that they don’t say bad things about each other to her or Y.
54.Y (7 years, 3 months) presented as a gentle, likable boy who seemed more confident and mature compared to his presentation for the S11F interview. He is in Grade 2 at school and reported that he likes school and is trying to become another leader for the Student Representative Council.
55.Y was also positive regarding his time at both parents’ houses. He stated that he likes the space to play around at his father’s house. Y likes his half-brother B and likes playing with him.
56.Y reported that he would like to spend more time with his father. He was unsure about spending equal time with each parent and expressed some minor concern regarding the change to the current arrangements and stated “I like things how they are”.
57.Y was not sure if his parents liked each other and he also denied that they say negative things about each other to himself and X.
58.X and Y have a very close relationship with Ms E, particularly Y. They also spend a lot of time with Mr Alvaras’ parents.
59.Neither of the children’s interviews indicated that they had been negatively influenced by either parent.
OBSERVATIONS OF INTERACTIONS
Mr Alvaras, X and Y
60.The observation between the children and their father occurred after lunch in the playroom. When Mr Alvaras entered the room, the children seemed pleased to see him and greeted him warmly with a “hi dad” whilst playing the computer. Mr Alvaras knelt down in-between them to interact with them regarding the game.
61.Mr Alvaras was able to follow the children’s lead around the room as they moved from activity to activity. Mr Alvaras was observed to manage both children’s needs well and moved easily with his attention between them. The children appeared relaxed and comfortable and the observation felt natural and easy. It is clear that X and Y have a positive relationship with their father. They both gave him a big hug to say goodbye when he left the playroom.
Ms Alvaras, Ms E, X and Y
62.The observation occurred between Ms Alvaras, X and Y initially and then Ms E was brought into the room for the last half. The observation was in the playroom and followed Mr Alvaras’ observation.
63.X came up to her mother and gave her a hug and kiss. Y came towards his mother and took her hand to show her his painting that was drying. Ms Alvaras moved between both children as Y wanted to play foosball and X wanted to paint. She attempted to get them to focus on an activity together but Y appeared slightly restless at this point and was moving through activities quickly seemingly unable to concentrate. It is possible that he was feeling slightly uncomfortable that his mother was not focusing primarily on him and seemed to be focusing more on X.
64.Ms Alvaras sat down at the table to play doh with X and Ms E was brought into the room. Y immediately came towards Ms E and gave her a big hug whereas X did not seem to acknowledge her and continued playing play doh with her mother. Y and Ms E engaged in some games of foosball which they appeared to mutually enjoy and there was laughter and fun. Ms E was able to focus her attention solely on Y and had a light, playful way of engaging with him which he responded to well.
65.Overall, it is clear that both children have positive and close relationships with both parents and with Ms E. Y seemed particularly close to Ms E and it is possible that in the home environment that X seeks out her mother more whereas Y seeks out Ms E in order to get his needs met.
EVALUATION
66.This assessment concerns the care arrangements for X (aged 8) and Y (aged 7). The parents are in dispute regarding the live with and spend time arrangements for the children. The children currently live primarily with their mother and spend five nights a fortnight with their father and half school holidays.
67.Essentially this dispute surrounds whether X and Y should spend an additional two nights in their fathers care. Although Mr Alvaras is seeking primary care in his application, he reported that he would accept equal shared care.
68.These parents have been able to manage their parenting arrangements without Court orders since separation. The first two initiating applications to Court lodged on behalf of Ms Alvaras were solely financial claims and did not include a parenting application. This speaks to the level of function in the parents relationship at this time given the children were already having significant time with Mr Alvaras and Ms Alvaras was not seeking to either finalise or change this.
69.There are allegations of family violence during the parent’s relationship but no collateral information was available to corroborate Ms Alvaras’ claims. Further information provided by Mr F matched Mr Alvaras’ accounts. Whether family violence occurred during the parents relationship or not, a protective factor in this situation is the parental separation. It appears that since this has occurred, that there has been no further incidents reported regarding family violence.
70.It is highly probable that the parents’ vastly different communication styles has contributed to a toxic relationship with ongoing conflict and misunderstandings. Throughout both interviews, Mr Alvaras demonstrated a thinking pattern that was concrete and inflexible at times combined with a limited ability to express emotions. He challenged the writer regarding her recommendations based on feedback that was provided at the S11F interviews and was forthright in his views regarding what he seemed to think was fair and just. Given his behaviour in interview, is possible that Mr Alvaras displays an authoritarian parenting style with the children also.
71.On the other hand, Ms Alvaras appears to have a more passive style of communication. Therefore, it is suspected that Ms Alvaras may have experienced Mr Alvaras’ behaviour to be intimidating at times, particularly given her more sensitive temperament that is prone to anxiety
72.Ms Alvaras appears to rely heavily on her partner, Ms E for emotional, practical support and parenting strategies. Ms E seems to have provided a lot of stability and security to both Ms Alvaras and also to X and Y. Ms E has been a positive influence to the children and is a protective factor for supporting Ms Alvaras’ mental health. Without her influence, it is expected that Y may still be experiencing anger outbursts which appear to be a direct result of passivity in Ms Alvaras parenting style.
73.The behaviour that Ms Alvaras demonstrated in the playroom when saying goodbye to X combined with the concerns raised by Mr F and Ms N in interview indicates that she may have difficulty separating her own emotional needs from those of the children and with regulating her emotions during times of stress. When this behaviour occurs in the parent child relationship it can create anxiety for children where they feel they are responsible for meeting the parents emotional needs. This behaviour can be expressed with separation anxiety for children which was observed with X in the playroom during that interaction and has been mentioned as an issue for X in the past.
74.Ms Alvaras could attend a parenting course such as Tuning into Kids to further support her with understanding X and Y’s emotional needs. When parents have these struggles, it can cause additional stress for children in separated families who need to move freely between the two homes, without concern for the one parent’s wellbeing whilst they are spending time with the other parent.
75.The children would benefit if Mr Alvaras also completed this course to ensure consistency across the households. It is very possible that his parenting style is vastly different to Ms Alvaras which may also cause confusion for the children in transitioning between the two homes.
76.Overall, the fact that Ms Alvaras has facilitated such significant time between Mr Alvaras and the children since separation in 2016 is evidence that she believes there to be minimal risk of harm in his care. After carrying out an investigation following notifications based on concerns relating to Mr Alvaras parenting, DHHS have also deemed that there is no risk of harm for the children in the care of Mr Alvaras.
77.Children of X and Y’s age have a strong desire to belong to and be part of a family. They are increasing in their ability to separate from their parents but still require support with emotional regulation at times. X and Y both presented as well adjusted, polite, children who appear to have a strong relationship with both parents along with their extended family. They appear to be coping well at school, have friends and are not displaying any concerning signs of trauma at this time.
78.It is possible that an equal shared care arrangement could be recommended for X and Y. However, this can be problematic when parents aren’t able to communicate effectively regarding the children’s needs and display a tendency to focus on the conflict between them instead of prioritising the children’s needs. Although there has been some slight improvements to the co-parenting dynamic between Mr Alvaras and Ms Alvaras, their history of poor communication coupled with their very different communication and parenting styles could place additional pressure on the children at such young age. Also of concern is the lack of commitment that has already been demonstrated by Mr Alvaras in relation to providing for the children’s needs with purchasing school uniforms, clothing and overall financial support in the current parenting arrangements. This behaviour would have had a direct impact on the children meaning that they would have had to become more reliant on Ms Alvaras with the current parenting arrangements which does not appear to have been considered by Mr Alvaras.
79.X and Y are young at present therefore the weight that should be placed on their views is less. Although they spoke positively regarding their time across both homes, they expressed a desire for their situation to remain the same.
80.The children would benefit if the co-parenting relationship continues to remain amicable. It is a credit to the parents for their efforts in attempting to improve this relationship since the S11F interviews. Following advice from the S11F conference, the parents changed the changeover venue to McDonalds from the Police station which demonstrates that they are beginning to prioritise the children’s needs over the parental acrimony. At this time, X and Y seem to be relatively unaware of the parental conflict and displayed no evidence of having been influenced negatively by either parent. This means they are free to enjoy a relationship with their parents without ambivalence and any additional emotional burden.
81.If the parents want to consider an equal shared parenting arrangement in the future that will benefit X and Y and not place them in the middle of the parental conflict, further improvements need to be made to the parent’s communication and overall consistency across the two homes.
RECOMMENDATIONS
82.The current parenting arrangements to remain in place with X and Y spending five nights per fortnight with Mr Alvaras.
83.X and Y to spend half school holidays with each parent and to alternate Christmas each year.
84.Parental responsibility to remain shared.
85.Mr Alvaras to ensure that he purchases school uniforms, clothing and belongings for the children whilst in his care.
86.Ms Alvaras to complete the parenting orders course if she has not done so already.
87.The children would benefit if the parents attended the Tuning into Kids or Circle of Security parenting course to support them with their parenting strategies going forward.
88.If further issues arise, the parents could attend mediation in the future.
The family consultant’s oral evidence
Ms D was cross-examined. Ms D said that she had instructed the mother, when she was leaving the observation with X and Y, to keep the farewells brief. However, Ms D noted that the mother said good-bye appropriately, but then hugged X for a prolonged period. During that period, Ms D asked the mother a few times to leave. Ms D said that she could see that X was getting distressed and that the mother was oblivious to X’s distress.
Ms D said that this behaviour on the mother’s part could give X the message that X is responsible for the mother’s feelings and that could cause confusion in the attachment between X and her mother.
Ms D said that the mother needed to do a parenting course on emotional regulation and the impact of parents’ emotions on children, such as Tuning into Kids or Circle of Security. Ms D said the mother needed to work on regulating her own emotions in times of stress, and separating her own emotional needs from those of X and Y. Ms D said that the parenting after separation course completed by the mother was insufficient.
Ms D said that, since the s.11F interviews, the communication between the parents had improved somewhat, but not significantly. She was not persuaded that resolving property and child support issues would greatly improve the parents’ communication. She said they had different communication styles, with the mother being passive and the father being very rigid and authoritarian.
Ms D said her recommendations were not based on X and Y’s views, because they are both very young.
Ms D said that moving X and Y to nine nights a fortnight with their father could be potentially psychologically damaging for them. More particularly, Ms D said that that change could cause X to suffer from anxiety, as she has a sensitive temperament.
Ms D said that equal time with each parent would have the same problem. She also said that the high conflict between the parents in this case contraindicated an equal shared parenting arrangement. Ms D said that, with the parents’ different parenting styles, it was important for X and Y to have a primary base, and majority care with one parent. Largely because the mother had consistently been their primary carer, Ms D considered that X and Y’s primary base should be with their mother.
Ms D said both parents had limitations as parents. She said the father was quite rigid and concrete and had a limited ability to emotionally attune to X and Y.
Ms D said that the mother felt overwhelmed by the father’s direct and persistent approach to communication. Ms D said that he tried to direct and control the interview process with her, and she found him quite challenging. She said that he tried to browbeat her. She said he was preoccupied … with fairness, as opposed to what was in the best interests of X and Y.
Ms D’s evidence was not shaken in cross-examination. I unequivocally accept her evidence.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) of the Act provides that:
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 will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There was no dispute that it is in X and Y’s best interests to have a meaningful relationship with both of their parents. X and Y would have the benefit of a meaningful relationship with both of their parents whether they live with one or the other of them nine days per fortnight.
Section 60CC(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
The mother’s case was that the father was physically and emotionally violent towards her. The father denied that. However, I have no doubt that he engaged in family violence towards the mother, consisting of physical and emotional violence and controlling behaviour.
The father tried to make much of various inconsistencies in the wife’s claims over time. However, I do not consider that they undermine the essence of her claims. She gave compelling evidence orally about her experiences at the hands of the father. I accept all of her claims about the father perpetrating family violence towards her.
It was not entirely clear whether X and Y were exposed to the physical violence. Nevertheless, I have no doubt at all that X and Y were exposed to the father’s intimidating and controlling behaviour towards the mother. Intimidating and controlling behaviour are forms of family violence and are known to be potentially damaging to children.
The father admitted that he had tapped Y on the bottom once, and left no mark. Contrary to the mother’s allegation, the father denied that he had slapped Y’s face. The father said that he himself had been disciplined with a belt as a child but found that form of discipline to be unnecessary with his own children.
I do not believe that the father only tapped Y on the bottom. I consider it to be much more likely that the father hit Y hard. However, either way, the father engaged in physical aggression against Y, which constitutes family violence. It may be lawful chastisement, as DHHS described it, but it is still poor parenting.
The father made much of an allegation that the mother put X and/or Y in the boot of her car. If this had happened, it would constitute abuse. The father’s counsel cross-examined the mother at length about this issue, and tried to trip her up on the basis that her denials took different forms at different times. However, I found her to be entirely credible on this issue. Moreover, the DHHS report summarised above indicates that both X and Y told DHHS that they had never travelled in the boot of a car and that they had only ever been left alone in a car when their father left them in the car to buy donuts. I consider that there is no substance to this allegation against the mother.
The father’s alleged cruelty to animals could constitute abuse of X and Y. However, it seems to me that the mother may have misunderstood what happened to the lizard. Based on what X and Y said to DHHS, it seems likely that the father put the lizard in the fire after it died, and that one or both of X and Y spread the ashes around. It is obviously very emotional for children when a pet dies, and parents need to help their children manage such events with sensitivity and with proper respect for the animal that has died. I am not persuaded that the father was cruel to the lizard, or the budgies. Obviously, in future, he needs to help X and Y to take proper care of animals and be sensitive to X and Y’s emotions in relation to them. The mother needs to make sure that she finds out the facts, rather than emotionally escalating issues that X and Y might find difficult even when well-handled.
In relation to the father’s gun, it was telling that the father told DHHS that he did not own a gun, and X and Y had never seen one, but if X and Y had seen a gun, it was in a container. This is all quite implausible. I consider that Y’s statement to DHHS, that his father had shown a gun to him and B in B’s bedroom, is probably the most accurate. It is not inherently abusive, neglectful or violent to show a child a gun. However, it is not the best parenting, because it may make guns seem attractive to a child, and, as we know, accidents involving children and guns happen all too often.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X and Y have consistently said over a considerable period of time that they wish to continue spending nine nights a fortnight with their mother and five nights a fortnight with their father. Ms D said that X and Y were a bit young for their views to carry any significant weight with her or the court. I accept Ms D’s view of this matter.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
X and Y have a good bond with each of their parents and their paternal grandparents. X and Y also have a good bond with the mother’s new partner, Ms E.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents have done all of these things consistently.
Section 60CC(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
The mother was somewhat confused about whether she wanted the father to pay child support, making much of the fact that he had not. It then transpired that she had not applied for child support, and, if she did, it was possible that she would be required to pay the father child support. That was because she works as a health care worker, and her taxable income is clear, and the father works as a self-employed tradesman and his taxable income appears to be minimal, although the mother claims that he earns a lot of cash in hand. Ultimately, the mother indicated to the court that she did not intend to apply for child support.
Each parent maintains X and Y while they are with them, which is nine nights a fortnight in the mother’s case and five nights a fortnight in the father’s case. I accept that the father has also contributed to some extent with school fees.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Ms D gave clear evidence to the effect that changing the present arrangements could be damaging for X and Y.
Section 60CC(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
The parents live fairly close to each other. This factor is not an issue in the present case.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) 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
In general, both parents are well able to care for X and Y, although, as Ms D said, both parents have limitations.
The father’s limitations are mostly connected with him being controlling, inflexible and not attuned to X and Y’s emotional needs.
The mother’s limitations are mostly connected with her being anxious, passive, emotionally dysregulated, and subjecting X in particular to the mother’s emotional needs. Some of the mother’s limitations are offset by Ms E providing an emotionally stable environment.
The father tried to make a point of the fact that the mother, as a health care worker, works night duty, and leaves X and Y in the care of Ms E. However, on the evidence, the mother leaves for work after X and Y are asleep and gets home shortly after they wake up. This is a non-issue.
Section 60CC(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
There were allegations to DHHS that both parents were drug users. These allegations were not borne out by drug testing.
There was also an allegation to DHHS that the mother was a prostitute. This was not pursued at the trial and I disregard it.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Overall, both parents have demonstrated a good attitude to the responsibilities of parenthood, although they do have the limitations mentioned previously.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This has been previously discussed.
Section 60CC(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) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
I take into account that a final intervention order was made against the father following a contested hearing.
Section 60CC(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
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. However, it is not entirely clear what that order would be.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances in this case.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(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.
(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)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); or
(b)family violence.
…
(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.
The parents agreed that equal shared parental responsibility is in the best interests of X and Y, notwithstanding the family violence that has occurred in this case, and notwithstanding the great difficulty the parents have in communicating with each other in a civil and respectful manner. Ms D also recommended that the parents have equal shared parental responsibility, notwithstanding their very conflictual relationship. In the circumstances of the parents’ agreement, and Ms D’s recommendation, I am prepared to make an order by consent for equal shared parental responsibility. That order will be made in the hope that the parents’ relationship will improve with the passage of time.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA of the Act provide as follows:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
For the reasons expressed by Ms D, I do not consider that equal time with each parent is in the best interest of X and Y.
In my view, and also for the reasons expressed by Ms D, it is in the best interests of X and Y to live with their mother and spend five nights a fortnight with their father. This will mean that X and Y will spend substantial time as defined with their father.
Christmas
As mentioned above, the mother submitted that the changeover times should be 3pm on each of Christmas Eve, Christmas Day and Boxing Day, while the father submitted that changeover should be at 5pm on Christmas Eve, 12md on Christmas Day and 5pm on Boxing Day. In my view, changeover should be at 5pm on Christmas Eve and Boxing Day and at 11am on Christmas Day.
Changeover at 11am on Christmas Day will mean that X and Y will spend Christmas Eve and Christmas morning with one parent, and be able to have Christmas lunch with the other. This will mean that the important parts of the day are divided between the parents each year on a reasonable basis. The parents live reasonably close to each other. An 11am changeover will enable X and B to travel to the other parent’s home and settle in prior to lunch commencing.
Changeover at 5pm on Christmas Eve and Boxing Day will enable X and Y to spend virtually a full day with one parent or the other. Changeover at 3pm would unreasonably disrupt the day.
X and Y’s birthdays
As mentioned above, In relation to X and Y’s birthdays, the mother proposed that:
a.if X and Y are living with their mother, then X and Y spend time with their father from the conclusion of school (or 4:00pm on a non-school day) until 8:00pm;
b.if X and Y are spending time with their father, then X and Y remain in their father’s care in accordance with these orders; and
c.at any other times as agreed between the parents in writing.
The father proposed that:
a.Commencing 2020 and each even year thereafter the children spend time from 3pm or after school on the child’s birthday as applicable until 9am the next day with the father, and from 9am or after school if applicable the next day until 9am the following day with the mother, and
b.Commencing 2021 and each odd year thereafter the children spend time from 3pm or after school on the child’s birthday as applicable until 9am the next day with the mother, and from 9am or after school if applicable the next day until 9am the following day with the father.
In my view, the mother’s proposal is in X and Y’s best interests. The father’s proposal is simply excessive.
Consent orders
In relation to other matters, I accept that the orders agreed to by the parents are in X and Y’s best interests. Those orders will be made by consent.
Costs
There was an issue in relation to the costs of the parenting aspect of the proceeding. However, I understand that issue was resolved at the mediation, so I will say nothing further about it.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 24 June 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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