Ambler and Kennan

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMBLER & KENNAN

[2013] FCCA 792

Catchwords:
FAMILY LAW – Time to be spent after allegations of physical abuse made in relation to the child – lack of communication between the parents – substantial and significant time.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 61DA

Applicant:

MR AMBLER

Respondent:

MS KENNAN

File Number:

MLC 7132 of 2008

Judgment of:

Judge Small

Hearing date:

7 June 2013

Date of Last Submission:

7 June 2013

Delivered at:

Melbourne

Delivered on:

16 July 2013

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Lowy

Solicitors for the Respondent:

Hayden Legro Lawyers

ORDERS

All previous parenting orders in relation to the child [X] born [in] 2005 (“[X]”) be and are hereby discharged, save for the Watch List order contained in paragraph 7 of the orders made in this Court on 26 September 2008, which shall remain in full force and effect for a further two years.
The parties shall retain equal shared parental responsibility for [X].
[X] shall live with the mother.
[X] shall spend time and communicate with the father by agreement between the parties, and, in the absence of agreement, as follows:
(a)From after school on Wednesday until after school on Monday in each alternate week beginning on the next Wednesday before the weekend when [X] would have spent time with his father pursuant to the orders of 26 September 2008;
(b)From after school until 7:30 p.m. on each alternate Thursday beginning on the Thursday following the first period of time specified in sub paragraph (a) hereof;
(c)For half of the school term holidays by agreement, and failing agreement:
(i)from 9:00 a.m. on the first Monday to 12 noon on the second Monday if the first weekend is not one when [X] would normally spend time with his father; and
(ii)from 12 noon on the second Monday to after school on the first day of the next school term if the first weekend is one when he would normally spend time with his father;
(d)For three weeks in the long summer vacation by agreement, and failing agreement, from 12 noon on the first Saturday after New Years Day to 3:30 p.m. on the Saturday three weeks later;
(e)From 10:00 a.m. to 6:30 p.m. on Fathers’ Day each year should it not fall on a weekend when [X] is spending time with his father pursuant to these orders; with time to suspend from 10:00a.m. to 6.30pm on Mothers’ Day each year should it fall on a weekend when [X] is spending time with his father;
(f)From 10:00 a.m. Christmas Eve until 10:00 a.m. on Christmas Day in odd numbered years, and from 10:00 a.m. on Christmas Day to 10:00 a.m. on Boxing Day in even numbered years;
(g)From after school until 7:30 p.m. on the father’s birthday each year, should it fall on a school day when [X] is not usually spending time with the father, with [X]’s time with the father to be suspended between the conclusion of school and 7:30 p.m. on the mother’s birthday each year if it falls on a school day when [X] would usually be spending time with the father;
(h)For four hours by agreement, and failing agreement from 10:00 a.m. until 2:00 p.m. on the father’s birthday should it fall on a non-school day when [X] is not usually spending time with the father, with such time to suspend for the same period on the mother’s birthday should it fall on a non-school day when [X] is spending time with his father.
(i)From after school until 6:00 p.m. on [X]’s birthday each year should it fall on a school day when [X] is not usually spending time with the father, with [X]’s time with the father to be suspended between the conclusion of school and 6:00 p.m. if it falls on a school day when [X] would usually be spending time with the father;
(j)For four hours by agreement, and failing agreement from 10:00 a.m. until 2:00 p.m. on [X]’s birthday should it fall on a non-school day when [X] is not usually spending time with the father, with such time to suspend for the same period should it fall on a non-school day when [X] is spending time with his father;
(k)At any other time by agreement between the parties.
The father and the mother by themselves, their servants or agents, are hereby restrained by injunction from subjecting [X] to corporal punishment of any kind and from exposing him to any such discipline being used on other children in either household in which he lives.
Changeover shall occur at [X]’s school, or, on days that are not school days, inside the McDonalds Restaurant at [omitted], or at any other place agreed by the parties in writing.
The parties will ensure that [X] is able to contact the other parent by telephone:
(a)when he requests to do so;
(b)each Saturday between 6:00 p.m. and 7:00 p.m., such contact to last for no more than fifteen minutes;
(c)during each school holiday period between 6:00 p.m. and 7:00 p.m. on Tuesday and Saturday, such contact to last for no more than fifteen minutes;
(d)in any emergency situation;
and the parties shall facilitate such contact to the best of their abilities.
Unless an alternative arrangement is agreed by the parties in writing, the parties shall communicate exclusively through a communications book, which is to travel with [X] between the two households. In the event that an urgent or unexpected event arises, the parties may communicate by text message only.
Each party shall notify the other as soon as possible of any medical or other emergency affecting [X] while he is in their respective care, and each shall authorise and direct any medical practitioner upon whom [X] attends to discuss his medical condition with and forward any medical reports to the other party.
The parties shall implement and adhere to any treatment regime specified by [X]’s treating medical practitioners.
The parties shall be at liberty to attend [X]’s school on such occasions as would be usual for a parent to attend, including but not limited to parent/teacher interviews, concerts, excursions, camps and sporting events.
Neither of the parties shall enrol [X] in any sporting or social activity which would affect the time he spends with the other parent without the consent of the other parent first obtained in writing.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in [X]’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct,
(b)discussing these proceedings or any parenting disputes or issues in [X] presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)involving [X] in any form of dispute between the parents save for allowing him to participate in child inclusive family counselling or family dispute resolution at the request or with the permission of the counsellor /mediator;
(d)passing messages through [X].
All extant applications are otherwise dismissed.

AND THE COURT NOTES

A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Ambler & Kennan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 7132 of 2008

MR AMBLER

Applicant

And

MS KENNAN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting case involving the care of the parties’ son [X] born [in] 2005 and now aged 8.
The applicant father is currently 41 years of age having been born [in] 1971. The respondent mother is currently 34 years of age having been born [in] 1979. The parties met through an introduction agency in Russia where Mr Ambler had travelled for the purpose of finding a partner.
The parties married in Australia on [omitted] 2001 and finally separated on [omitted] 2004, some 5 months before [X]’s birth.
Since separation [X] has lived with the mother and spent time with the father pursuant to varying orders of this Court.

Court History

In the first set of parenting proceedings, final orders were made by consent on 30 January 2006, providing for [X] to live with the mother and spend time with the father. On 26 September 2008 further orders were made providing for variation of the previous orders in a more detailed fashion. Pursuant to those orders [X] spends five nights per fortnight with his father.
Between August 2009 and March 2010 the parties were engaged in litigation in relation to whether the mother ought to be permitted to take [X] on a holiday to Russia to visit her family, that litigation resulting in orders made in favour of the mother on 23 July 2010.
The current proceedings were begun by the application of the father filed 20 January 2012 after the mother ceased all time between [X] and his father. In that application the father sought a variation in the orders of 26 September 2008 such that [X] live with the father and the mother on a week about basis, and that all changeovers take place at [X]’s school where possible. On non school days the father sought changeover at each of the parties’ residences. Otherwise he sought that the orders 26 September 2008 remain in full force and effect.
In the mother’s Response filed 28 February 2012 she sought orders that [X] live with her and spend supervised time with the father for 2 hours a week or more at [omitted] Child Contact Centre. She also sought a psychological report for [X] and an order for the father to attend a post separation parenting course.
On 1 March 2012 the mother filed a Form 4 Notice of Child Abuse or Family Violence. In that document, she alleges four instances of abuse:
1. The Father has been inappropriately hitting the child with a ruler.
2. The Father has told the child the Mother is dead.
3. The Mother has concerns about the father’s violent outbursts.
4. The Father has made inappropriate comments to the child regarding his genetalia (sic)
On 7 March 2012 Federal Magistrate Whelan (as Her Honour then was) made no substantive parenting orders, thus effectively restoring the orders of 26 September 2008.
At that hearing Her Honour adjourned the matter to 25 October 2012 for an interim hearing in relation to parenting matters and also ordered that a s.62G(2) Family Report be prepared, that report to be released by 15 September 2012.
At the interim hearing on 25 October 2012 after the release of the Family Report, Her Honour made orders in the following terms:
1. The child, [X] born [in] 2005 live with the Mother.
2. The child spend time with the Father as follows:
(a)    In week one, from the conclusion of school on Friday at 3.30pm until the commencement of school on Monday morning; and
(b)    In week two, each alternate Wednesday from the conclusion of school until the commencement of school on Friday morning.
3. All changeovers for the spend time with periods to take place at the child’s school and on occasions where this is not possible, changeovers are to take place at the [omitted] Police Station.
4. Over the 2012 Christmas period, the child spend time with:
(a)    the Mother from 10.00am Christmas Eve to 10.00am Christmas Day; and
(b)    the Father from 10.00am Christmas Day to 10.00am Boxing Day.
5. The parties communicate exclusively through a communication book, which is to travel with the child when spending time with the parties. In the event that an urgent or unexpected situation arises the parties may communicate by text message only.
6. Both parties are at liberty to attend any significant (e.g. end of year, semester or term) school events, and any significant extracurricular or sporting events.
7. Each party shall keep the other informed in the event that the child requires urgent medical attention whilst in their respective care, and that such notification be provided within 24 hours of the said medical attention being obtained.
8. Both parents be provided with the details of any medical specialist that the child attends and be authorised to obtain any information about the child from them.
9. That both parties are restrained from:
(a)    Denigrating the other party or other party’s family in the presence or hearing of the child;
(b)    Discussing parenting disputes and/or issues with or in the presence of the child;
(c)     Passing messages through the child;
(d) Physically disciplining the child or allowing any other person to physically discipline the child.
These are the orders that operate as this matter comes to trial.
On 11 April 2013 the father filed an amended application seeking essentially the same orders as his initial application but with a minor variation in relation to the changeover time.
The mother filed another further Amended Response on 2 May 2013 seeking alternate weekend time between [X] and his father and various other orders in relation to [X]’s care welfare and development.
On 15 May 2013 the matter was listed for final hearing but it was not reached and was adjourned for final hearing on 7 June 2013.
In his outline of case document filed 9 May 2013 the father sought the following orders:
1. That paragraph 2 and 3 of the Orders dated the 25th October 2012 (the Order) be discharged.

2. That the husband spend time with the child as follows:
(a) In week one, from the conclusion of school on Friday at 3.00p.m until the commencement of school on Monday morning; and
(b) In week two, each alternate Wednesday from the conclusion of school until the commencement of school on Friday morning. [X] will spend half the school holidays with each parent week about.
3. All changeover for the spend time with periods to take place at the child’s school and on occasions where this is not possible, changeovers are to take place at the [omitted] Police station.
4. Over the Christmas period the father will have [X] from 10.00am Christmas Eve and changeover 10.00a.m Christmas Day. The mother will have [X] from 10.00a.m Christmas Day to 10.00a.m Boxing Day. Every following Christmas the father and the mother will alternate Christmas Eve and Christmas Day.
5. That both parties are restrained from taking or sending or attempting to take or send the child ([X], male, born [in] 2005) from the Commonwealth of Australia.
6. That otherwise the Orders remain in full force and effect.
In the her outline of case document the mother sought the following orders:
1.That all previous Parenting Orders be discharged.
2 That the parties have equal shared parental responsibility for the child [X] born [in] 2005.
3. That the child live with the mother.
4. That the child spend time with the father as follows:
(a) Each alternate weekend from the conclusion of school on Friday at 3.30pm until the commencement of school on Monday morning commenting 31 May 2013;
(b) At any other times as agreed between the parties in writing.
5. That notwithstanding anything stated in paragraph 4 the parties shall each spend time with the child as follow:
(a) Over the Christmas holidays at times to be agreed or in the absence of agreement as follows:
(i) In 2012 and each even year thereafter with the mother from 10.00am Christmas Eve until 10.00am Christmas Day and with the father from 10.00am Christmas Day until 10.00am Boxing Day;
(ii) In 2013 and each odd year thereafter with the father from 10.00am Christmas Eve until 10.00am Christmas Day and with the mother from 10.00am Christmas Day until 10.00am Boxing Day;
(b) If the father would not otherwise spend time with the child on Father’s Day with the father from 10.00am to 6.00pm on Father’s Day or otherwise as agreed;
(c) If the mother would not otherwise spend time with the child on Mother’s Day; with the mother from 10.00am to 6.00pm on Mother’s Day or otherwise as agreed;
(d) For one half of each of the school holidays at times to be agreed, and in the absence of agreement, if the holidays begin on a weekend that the father is to spend time with the child, then the child will spend the first week with the mother from the Monday morning. If the holidays begin on a weekend that the father is not spending time with the child then the father will spend the first week with the child from the Monday morning.
6. That the parties be permitted to communicate with the child by telephone as follows:
(a)When requested by the child;
(b) During each of the school holidays from 6.00pm to 7.00pm on each Tuesday, Thursday and Saturday of each week for no more than 15 minutes; and
(c) At all other reasonable times;
and the parties shall provide all reasonable assistance to enable such communication to take place.
7. All changeovers for the spend time periods to take place at the child’s school and on occasions where this is not possible, changeovers are to take place at the [omitted] Police Station.
8. The parties communicate exclusively through a communication book, which is to travel with the child when spending time with the parties. In the event that an urgent or unexpected situation arises the parties may communicate by text message only.
9. That each party shall forthwith notify the other of any medical or other emergency affecting the child and each shall authorise and direct any medical practitioner upon whom the child attends to discuss the child’s medical condition with and forward any copies of any reports to the other party.
10. The parties shall implement and adhere to any treatment regime specified by child’s treating medical practitioners.
11. The parties shall be at liberty to attend the child’s school on such occasions as would be usual for a parent to attend, including but not limited to parent/teacher interviews, concerts, excursions, camps and sporting events.
12. That the father be assessed by a psychiatrist forthwith and that a report of the psychiatric assessment be made available to the mother’s solicitors as soon as practicable.
13 That both parties be restrained from:
(a) Denigrating the other or the other’s family in the presence or hearing of the child or allowing the child to come into contact with any other person who is denigrating the other or the other’s family;
(b) Discussing parenting disputes and/or issues in the presence or hearing of the child;
(c) Involving the child in any form of dispute between the parties or otherwise;
(d) Passing messages through the child; and
(e) Physically disciplining the child or any of them (sic) or allowing any other person to physically discipline the child or any of them (sic).
Throughout all proceedings in this matter, which began with the father’s application to the Family Court of Australia in May 2005, the mother has alleged that the father has a dominating, controlling and domineering personality, that he has threatened her with physical violence and was verbally and emotionally abusive from the beginning of the marriage. She says he has no respect for her and seeks to control her life and her parenting of [X]. She says she left the marriage when the father ordered her to leave after she had refused to have sex with him.
The father denies that he is controlling and says he only wants the best for his son. He says that the mother used him to obtain permanent residence in Australia and left him once that objective had been reached. He was devastated by the breakdown of the marriage and has been critical of the mother throughout the proceedings. He says that since he married his current wife and had two more children, he is much happier and more settled.

Current Proceedings

In mid 2011, when [X] was not yet 7 years old, he disclosed to his school teacher that during a visit with his father the father had hit him with a ruler. This alleged incident was the catalyst for a course of action taken by the mother that ultimately led to the current proceedings.
In his affidavit filed 20 January 2012 the father says that orders of 2008 were working well until about September or October 2011 when he says [X] became withdrawn, telling the father that the mother had told him that his half siblings (the children of Mr Ambler’s current marriage) were not really his siblings.
All contact between [X] and the father ceased in December 2011, which resulted in these proceedings being filed in January 2012.
The mother alleges that on hearing of the report from [X] that he had been hit with a ruler, she notified the Department of Human Services (“DHS”) and cut off all contact between [X] and his father as a protective measure.
However, her evidence is that while [X] first reported the alleged assault by his father in mid 2011 and that DHS were notified, they did not take any action, and she did not cease [X]’s time with the father until December of that year. She says that [X] became more and more upset about spending time with his father over that time, although the father says he saw no difference in [X] other than that he was a little withdrawn as set out above.
[X] did not see his father between December 2011 and the hearing of 7 March 2012 when previous orders were confirmed and the former regime was restored.
Two Family Reports have been prepared in the totality of these proceedings, one by Ms C on 4 January 2006; and the second by Dr R on 15 September 2012.
The two Reports, prepared some six and a half years apart, are disturbingly consistent in their description of the parties’ relationship. Both Reports comment on the inability of the parties to communicate with each other about [X]’s welfare, and both state that the father would benefit from some counselling to assist him with his distress resulting from the breakdown of the relationship and with the ongoing tension between him and the mother. In evidence the father acknowledged that he had not sought such counselling as he did not think he needed it. He did say he would attend if the Court so ordered.
Both Reports comment on Mr Ambler’s inability to allow the person he is talking too to speak without interruption, and both comment on his volatility and lack of insight where Ms Kennan is concerned.
At trial, Mr Ambler was excitable in his presentation, and did have to be asked not to speak over counsel, Ms Kennan and the Court. However, he did not in my view display any inability to control himself, or any unwillingness to comply with the Court’s directions. He is passionate about his son and described him in loving terms.
He presented as willing to improve his communication and relationship with Ms Kennan, but did not seem to understand that that would need as much work on his part as it would on hers. He lacks some insight when it comes to his responsibility for his relationship with Ms Kennan as [X]’s mother, although he acknowledges that she looks after [X] well and is a good mother. The circumstances of the parties’ separation have left Mr Ambler feeling used by Ms Kennan, as he says he loved her but that feeling was not reciprocated and she only wanted to marry him so she could acquire Australian residence.
Ms Kennan presented as sensible and appropriate in her approach to the proceedings and to [X]’s welfare, but as somewhat despairing that the relationship with his father could be improved. She denies that she used Mr Ambler to attain Australian residence but acknowledges that she was not in love with him.
In my opinion Mr Ambler would certainly benefit from counselling, but for it to be effective he would need to understand the need for it. Unfortunately, his evidence at trial was that he does not feel that need. In those circumstances I do not intend to make an order that he undergo counselling.

The Law

The Law in relation to parenting matters is found in Part VII of the Family Law Act 1975.
Section 60B sets out the objects of the Act in relation to parenting issues 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 states that when making orders under this part the Court must consider the best interests of the child as its paramount concern. That does not mean that the children’s best interest should be the Court’s only concern when making children’s orders, but that those interests should always be at the forefront of the Court’s mind.
Section 60CC sets out the factors the Court must consider in discerning what orders would best promote the children’s best interests, and I will return to the provisions of s.60CC later in these reasons.
Section 61DA(1) says:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Both parties had sought equal shared parental responsibilities in their applications and when I noted during the trial that despite allegations of a risk of abuse in relation to [X] the mother sought equal shared parental responsibility, Counsel for the mother made it clear that she was not seeking to rebut the presumption contained in s.61DA.
In those circumstances, and having now heard all the evidence from both parties, I am satisfied that the presumption is not rebutted and will make an order for equal shared parental responsibility in relation to [X].
Although the father’s original application was for week about care, at trial he was clear that he wanted [X] to live with his mother and to spend time with his father pursuant to the orders of 26 September 2008, that is on each alternate weekend and for two nights in the off week.
As both parties are now agreed that [X] should live with his mother, I will make an order in those terms. It is therefore not necessary for me to consider whether [X] should spend equal time with both parents.
I must now consider whether to make an order for [X] to spend substantial and significant time with the father. In doing so I must consider whether such an order is in [X]’s best interests and if so, whether that order is practical in the circumstances of this case.
Section 60CC(2) sets out the primary considerations to be taken into account when the Court is determining which orders might be in the child’s best interest. Those consideration are:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) 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).
Amendments to the Family Law Act which came into force in June 2012 and are now found in s.60CC(2A) now require the Court to give precedence to the need to protect a child from harm over the benefit of the child having a meaningful relationship with both parents in circumstances where those two provisions come into conflict.
In this case a restraint was placed on the father from using physical discipline against [X] in the orders on 25 October 2012. While the father adamantly denies that the he has ever hit [X] with a ruler as alleged by the mother, it is common ground between the parties that since those orders were made there has been no suggestion of further inappropriate physical discipline on the part of the father or his current wife.
Therefore, in circumstances where there appears no longer to be a risk of such discipline being used against [X] while such a order is in place, I do not believe that s.60CC(2)(a) and s.60CC(2)(b) conflict at present in terms of [X] being physically disciplined.
However, as there are allegations that the father and his current wife use physical discipline on their own two children while [X] is present, I will make an order that [X] not be exposed to that conduct.
Additional considerations are then set out in s.60CC(3) and I will address each of these in turn:
(3)Additional considerations are:
(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;
(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);
(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.
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(3)(a)
In this case, [X] is reported to have expressed a wish to spend time with his father, and while he is only eight years old, and his wishes have much less weight than they would if he were, say, twelve, I do take them into consideration.
Section 60CC(3)(b)
There is evidence going back to the Family Report of Ms C in 2005 that Mr Ambler loves [X] dearly and that [X] is comfortable and happy in his presence. In both observations, the father played appropriately and responsively with [X] and appeared to be able to respond to his needs.
However, in daily life, Mr Ambler exhibits some lack of insight where [X]’s feelings are concerned. For instance, he appears not to understand that it might be inappropriate to ask [X] to relay messages to his mother and that that might cause [X] some distress.
There is no evidence that [X]’s relationship with his mother is anything but close, loving and appropriate. She takes [X]’s feelings into account and is concerned to protect him from the impact of his parents being involved in a series of court proceedings since his early infancy.
It is the father’s evidence that [X] gets on well with his current wife and [X]’s half siblings, and that they are a happy family together. While the mother has some misgivings about the discipline used on the father’s children, there is nothing in evidence to deny that the relationship between [X] and the father’s new family is anything other than normal.
Section 60CC(3)(c)
The history of litigation in this Court, and in the Family Court before it, is testimony to both parents having taken every possible opportunity to be involved in [X]’s life to the greatest extent possible.
However, the constant disputes between them have rendered this aspect less beneficial for [X] than perhaps the legislation intended.
Section 60CC(3)(ca)
The evidence is that Mr Ambler has complied with his child support obligations in general and that he looks after [X] when he is in his care.
Both parents otherwise maintain [X] when he is with them.
Section 60CC(3)(d)
[X] currently spends five nights per fortnight in his father’s care. The orders I propose to make do not alter the number of those nights but do alter the regime. The effect of this will be that [X] spends more time away from his father’s family between overnight visits than is currently the case. However, the mid-week visit I propose will nullify any negative consequences that might arise from that separation.
The order will mean that [X] will spend five consecutive nights away from his mother rather than one three night period and one two night period per fortnight. However, as I propose to make orders in relation to telephone contact between [X] and the other parent wherever he is, I believe that the impact of that will be minimal.
Section 60CC(3)(e)
The mother lives in [omitted], the father in [omitted]. That is a distance of some 18 kilometres via the [omitted] Freeway and is an approximate 20 minute drive. I do not believe that that distance creates any difficulty or expense that will substantially affect [X]’s right to maintain his contact with both his parents on a regular basis.
Section 60CC(3)(f)
There is no evidence before the Court, apart from an allegation that the father did not provide [X] with appropriate clothing for one cold day, and a complaint that the sandwiches he provides for [X]’s lunch are not to [X]’s liking, to suggest that [X]’s material needs are not met when in the care of either parent. I consider the complaints to be quite trivial in the scheme of things and do not place great weight on them.
Both parents are aware of and keen to promote [X]’s intellectual and educational needs.
It is in the area of their capacity to provide for [X]’s emotional needs that their behaviour comes under most scrutiny.
While Mr Ambler clearly loves [X] very much, and speaks of him with great pride, he is at times less mindful of [X]’s need to be an ordinary eight-year-old than he might be. There are times when he does appear to take his own needs and wishes into account ahead of [X]’s. For instance, he asked [X] why he had told his teacher that Mr Ambler had hit him with a ruler, and described to the Family Reporter in 2012 that [X]’s response had been to lower his head and neither make eye contact nor respond verbally. He did not seem to interpret his behaviour in any way, nor to think that it was in any way untoward or that it might have a negative impact on [X]. In relation to another situation, he did not seem to have any understanding that asking [X] to ask his mother to speak to his father might not be appropriate.
However, he acknowledges the vital role that Ms Kennan plays in [X]’s life, and showed some insight into the need to shield [X] from the dispute between his parents.
Ms Kennan on the other hand, might have overreacted to [X]’s disclosure that he had allegedly been hit by his father with a ruler in mid 2011. In the immediate aftermath, she acted protectively, making a notification to the Child Protection authorities and asking the father via the communications book not to hit [X]. Later however, she withdrew [X] from school on the days when his father was to pick him up so that [X] could not spend time with him. This in itself must have caused [X] some distress although I accept that the mother’s intentions were to protect her son.
Otherwise, Ms Kennan appears to take good care of [X] and to account for his feelings. She says, for instance, that [X]’s routine is disrupted by the mid-week overnight time he spends with his father each alternate week. She has noticed his behaviour being different and says she wants to shield him from that stress.

The mother acknowledges that [X] benefits from his relationship with his father and says she wishes to foster that relationship. Her concern is for [X]’s safety and wellbeing, and for her own safety and wellbeing in the father’s presence.
It is clear, and accepted by both parents, at least at an intellectual level, that their communication needs to improve for [X]’s sake.
Nevertheless, Dr R’s Family Report in 2012 states the following, at paragraph 45:
No interaction was observed between the parents throughout the assessment period and the writer observed neither verbal communication nor physical body cues between the parents whilst attending the writer’s rooms by acknowledging each other’s presence. It is their inability to engage in this most basic form of clear and open communication that raises the question as to how this will impact on [X] in his long term relationship with both of his parents. Such conflict and limited communication appear highly diagnostic of a poor prognosis for [X] being able to attain a positive outcome during his developmental years of adolescence and into young adulthood if the parents are unprepared to address these issues at this important time in his life.
It is to be hoped that both parents will take those words to heart and attempt to improve their relationship as [X]’s parents so as to avoid the impact of their animosity on [X] throughout his adolescence and adulthood.
Section 60CC(3)(g)
Ms Kennan is Russian and Mr Ambler is Maltese, although he has spent much of his life in Australia. Mr Ambler has remarried and has two children from that marriage, while Ms Kennan has remained single.
There is some concern about Mr Ambler’s level of maturity, but most of that evidence is historical, for example his threats to harm himself if Ms Kennan left him.
While the first Family Report spoke of cultural clashes, the evidence at trial was almost entirely about personal and personality differences. The only issue mentioned at trial was Mr Ambler’s previous wish to have [X] attend a Catholic school nearer to his home, but he did not press that matter at trial. Neither parent sought orders which would account for any special cultural events or celebrations, and I do not place a great amount of weight on this consideration.
Section 60CC(3)(h)
This is not a relevant factor in these proceedings.
Section 60CC(3)(i)
Both parents clearly love [X] very much. Both describe him as a generally happy child, and both genuinely want what is best for him. Apart from the matters set out in paragraph 53 of these reasons, both appear to take their parental responsibilities very seriously.
Section 60CC(3)(j);
The allegation that the father hit [X] with a ruler and that he disciplines his other children in that fashion, is very concerning. The father’s admission, both to the Family Reporter and in evidence, that he “screams” at [X] when he misbehaves is also of concern.
After hearing all the evidence, I am satisfied on the balance of probabilities that [X] has at very least been exposed to the threat of the ruler and to his siblings being struck.
The mother also accuses the father of having engaged in emotional abuse, verbal abuse and physical violence in relation to objects during the marriage.
The orders I propose to make will restrain both parties, and anyone else in their households, from inflicting corporal punishment on [X] at any time. They will also restrain Mr and Ms Ambler from physically disciplining their own children when [X] is spending time with his father. The only reason I do not make orders restraining them from inflicting corporal punishment on their own children at other times is that I have no jurisdiction to do so as they are not the subject of these proceedings.
The evidence before the court is that since such a restraining order was first put in place, there have been no further allegations in relation to the father’s treatment of [X]. [X] himself has expressed fears that if there is not an order in place, the father will again resort to physical punishment. The orders I propose should give him and the mother some comfort in relation to that issue.
Should there be any instances of family violence, whether in the form of abuse of any kind, or physical incidents, the mother is at liberty to seek an intervention order through the Magistrates Court of Victoria, and I note that the definition of family violence under the Family Violence Protection Act 2008 (Vic) is much broader now than it was when she first sought an order in 2005.
Section 60CC(3)(k)
There is not and as far as I am aware there never has been an intervention order in place between the parties.
Section 60CC(3)(l).
These parties have been engaged in litigation about [X] for most of [X]’s eight years. I have little doubt that unless they are able to put past disappointments and events behind them, and behave in a more mature manner which is truly in [X]’s best interests, there will be future proceedings. That would be to [X]’s detriment and could damage his development into adulthood. I sincerely hope that the mother and father will refrain from future litigation and attempt to resolve any disputes which might arise in future through non-adversarial processes such as counselling or mediation.
I have attempted to craft orders that I hope will not lead to future proceedings.
Section 60CC(3)(m).
The parties have been conducting changeover at non-school times at a local police station. I told them at trial that I am very reluctant to make orders for changeover at police stations because of the negative message it gives to children about their safety in the care of their parents. I have therefore crafted an order whereby changeovers that do not take place at [X]’s school will take place inside the McDonalds Restaurant at [omitted] roughly half way between the parties’ houses. Should that not be suitable, then the parties can agree in writing to an alternative venue.
In my view there is no other fact or circumstance in this case which is not covered by the preceding paragraphs.
For all the reasons stated above, I will make the orders set out at the beginning of this judgment.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 16 July 2013

[2013] FCCA 792

16 July 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Consent

Procedural Fairness

Remedies