ATANAS & GREER

[2015] FamCA 223

FAMILY COURT OF AUSTRALIA

ATANAS & GREER [2015] FamCA 223

FAMILY LAW – CHILDREN – Discrete issue – where at the conclusion of a three day hearing, the parties had reached agreement on many aspects of their dispute – where the issue of parental responsibility remained to be resolved – where the children were, on at least one occasion, exposed to family violence – where the state of the parties’ current relationship rebuts the presumption of equal shared parental responsibility – mother to have sole parental responsibility with detailed reporting and consultation requirements, including finally advising the father of any particular decision taken  

FAMILY LAW – COSTS – Mother to contribute to the costs of the Independent Children’s Lawyer

Family Law Act 1975 (Cth), ss 61B, 61C, 61DA, 64B, 117

APPLICANT: Mr Atanas

RESPONDENT: Mr Greer

INDEPENDENT CHILDREN’S LAWYER: Boyd Olsen Lawyers

FILE NUMBER: NCC 1480 of 2013

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2, 3, 4 and 9 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Kinnear & Company

RESPONDENT: In Person   

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boyd Olsen Lawyers

Orders

1. All prior parenting Orders in relation to B born … 2002 and C born … 2003 (“the children”) made in the Federal Circuit Court and in this Court prior to 4 March 2015 are discharged.

Parental Responsibility

1. The mother shall have sole parental responsibility for the children.

2. The mother shall take the following steps whenever the need for a decision arises about a long term issue (including but not limited to change of enrolment at school; specialist medical treatment/surgery; religious instruction) about one or both of the children:

   (a)Advise the father in writing of the matter which requires a decision and of the proposal of the mother in that regard;

   (b)Invite the written response of the father within a defined period of time to be reasonable in the circumstances;

   (c)Genuinely consider the response of the father and take his views and proposals, if any, into account before coming to a decision; and

   (d)Promptly advise the father in writing of the decision taken.

Communication

1. Each of the parties shall keep the other advised of a mobile telephone number for that party.

2. Unless otherwise agreed the parties shall communicate by text message via mobile telephone.

3. Each of the parties is restrained from contacting the other party for a purpose other than:

   (a)Complying with these Orders; and

   (b)Providing information relating directly to the welfare of one or both of the children.

Restraints

1. That the parents are each restrained from posting derogatory remarks; taunts and criticisms via social media on any setting about the other party and members of the extended family of that parent.

Costs

1. The Independent Children’s Lawyer having made an Application for her costs to be paid:

   (a)No Order for costs in respect of the Applicant father;

   (b)The Respondent mother to pay 25 per cent of costs in the sum of $2,230.00 with 12 months to pay NOTING that the father paid the cost of the Report by the Single Expert ($6,000.00).

NOTATION:

(A)The Independent Children’s Lawyers will also attend the meeting with both of the children and the Family Consultant when these Orders are explained to them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atanas & Greer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1480 of 2013

Mr Atanas

Applicant

And

Mr Greer  

Respondent

And

Boyd Olsen Lawyers
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. In this matter, there are competing applications for parenting orders in relation to two children, B, aged 13 in 2015, in her first year of high school, and C, aged 12 in 2015, in year 6 at primary school (“the children”).  The applicant is the father.  The mother is the respondent.  They are both aged 42.

2. The father was represented in these proceedings by a solicitor and Counsel.  The mother represented herself.  As almost all self-representing parties are, the mother was at a comparative disadvantage.  There was not as thorough a testing of the evidence as would have been with Counsel.  The mother did, however, after a tentative start, cross-examine the father for two or three hours.  The mother had been given leave to issue certain subpoena when directions were made on 24 September 2014.  She did not tender any documents into evidence, although aware of her right to do so.

3. However, the mother had an experienced solicitor acting for her when her affidavits were prepared.  No application was made for adjournment, without suggesting that any such adjournment would have been granted, and in the end, in my view, the mother chose to represent herself. 

4. At the conclusion of a three day hearing, the parties had reached agreement on many aspects of their dispute.  The children are to continue living with the mother.  That was a common position from the outset.

5. The parties have committed themselves to engaging with family therapists for the benefit of the children and each of themselves as parents, with a goal of restoring relationships between the children and the father. 

6. There is agreement about communication between the father and the children by the sending of letters, cards and gifts.  The mother withdrew her application to change the children’s surnames. 

7. Only the issues of parental responsibility and communication between the parties about the children remained to be resolved.

History of Relevant Events

1. The parties began living together either in April 1998, according to the mother, or in 2000, according to the father.  Nothing particularly turns on that difference.  The mother’s son, Mr D, now 22 years old, also became a member of the household at that time.  He would have been either six or eight years of age at that time. 

2. In 2002, the parties moved into the property which became the family home, in which the father still lives.

3. The parties first separated on 18 November 2008.  The subject children were then aged six and five respectively.  Mr D was 16.  The mother left the family home with the children and moved to live with the maternal grandmother.  After about a week, the father began spending time with the children by arrangement. 

4. In February 2009, an agreement was reached under the New South Wales

   
   

   de facto relationships legislation in relation to the adjustment of interests in the parties’ property.  The father retained the family home.

5. Another property was transferred to the mother and there was also a cash payment to her.  Both parties were legally represented in that matter.  The mother waived her legal privilege to provide a copy of written advice from her then solicitor that outcomes may have been more advantageous to the mother, which was annexure A to her affidavit, but that she had made an informed decision.  It is apparent from the letter annexed that advice was sought by the mother prior to her decision to separate from the father.  The mother apparently made an offer which was accepted by the father.

6. To the extent that this matter was raised as an aspect of family violence, in particular, financial control, I reject that proposition.  In March 2009, the mother and children moved out of the home of the maternal grandmother into the property in which they still live.  That was the property that was transferred as part of the de facto property settlement. 

7. There followed a period of about four years which the parties categorise differently.  There were the two separate physical households, but with very regular, often daily, interaction.

8. The father says that the parties started to reconcile, although never quite reaching the point of living together again as a couple.  He also says he enjoyed an affectionate relationship with the children during these years.  The mother says that they considered, as a couple, reconciliation but did not achieve it and that the father attended her home fairly regularly, using the spare key, and spent time with the children although, in her view, it was not good ‘quality time’.  The father did not engage much with the children, in her view, but attended to business of his own.  The truth in that regard is probably somewhere between the accounts of each party.

9. By mid to late-2012, the father says the reconciliation efforts ended and, in August 2012, he returned the mother’s spare key to her.  The perspective of the mother was that there had been no real reconciliation prospects.  Rather, she had allowed the father to come into her home at any time because it was the only way the children would feel comfortable with him.  I do not consider that that was entirely the case.  It was the preferred course of the mother that the children spend time with the father in her home and it enabled an easy flow of care arrangements for the children which included not only the father but the maternal grandmother and other members of the family.

10. By late 2012, the relationship between the father and the children began to deteriorate.  The children were then aged 10 and nine respectively.  For the father, their discipline became an issue.  He found them increasingly rude.[1]  The mother perceived the father becoming more aggressive towards the children and insensitive to their emotional needs.[2]

    [1] Affidavit of the father filed 19/06/2013, par 29

    [2] Affidavit of the mother filed 30/07/2013, pars 57-60

11. This difference of perception is at the heart of the parties’ difficulties and is, indeed, a difference of perception.  The parties have very different parenting styles and it is clear that that began to become an issue as the children moved towards puberty; particularly for B. 

12. The father concedes saying to B, in response to what he refers as “rude behaviour”, “How dare you speak to me like that.  You should respect me.  That is no way to speak to your father”.[3] The father says that he used a stern voice.  He did not provide the detail and context of the incident, whatever it was, in particular what B had said or done, in order for the Court to assess the proportionality of his response which may or may not have been entirely appropriate.  He denied calling the children “smart-ass little bitches” or “spoilt little bitches”.  I am unable to come to a conclusion about that.

    [3] Affidavit of the father filed 10/04/2014, par 16

13. The mother put into evidence what B told her about that in March 2013.[4]  B may have been an accurate reporter.  There is some doubt about it since she was well aware by then of the disagreements between the parties but, in any event, it probably does not constitute family violence. 

    [4] Affidavit of the mother filed 02/02/2015, par 18

14. I note also the evidence of the father’s partner, who was an impressive witness.  She referred to the father holding the view that children should be respectful to adults, particularly parents and older family members and that the father would not tolerate a child being rude or ignorant without his speaking up. She considered that the father has not done that offensively or threateningly. 

15. The mother has a way of being more open about her approach to the children, listening before deciding and punishing.  She is, perhaps, more indulgent of poor behaviour than the father is prepared to be or could be more easily able to contend with it.  Another explanation is that she was a more experienced parent, having already raised an older child.

16. Mr D, the mother’s older child, attended the interviews with Dr E for the preparation of the Expert Report.  Dr E spontaneously referred to being impressed by Mr D’s maturity and sensitivity in offering to go with B to see the father if that would help her feel more comfortable in interview.  Mr D described the father, his step-father, as “way too dominant”.  He denied feeling scared of him but described him in this way, “[he] has to be 100 per cent in control, if the house was not spotless, he’d yell”.[5]

    [5] Expert Report dated 30/05/2014, pg 18

17. In an incident prior to the parties’ first separation, the mother phoned Mr D, then aged 14, to say she was hiding under the bed from the father and was scared.  Apparently police were called, although there is no evidence before me of that happening or what was said and done.  Mr D says there was a confrontation between himself and the father, initiated by Mr D clearly as his mother’s protector, which led to a bit of push and shove between them.  If true, this incident does not reflect well on either parent.

18. I conclude that as the children grew a little older and the parties had given up on any prospect of reconciliation, that their differences as parents came into very sharp focus and they each perceived the other as both wrong in their approach and controlling of the other parent.  It is reasonably open to conclude that the children reacted to the change in arrangements at the end of 2012 in their own way, perhaps taking advantage of those different parenting styles and feeling freer to resist the father’s stricter rules about conduct.

19. The children were probably warmly supported by the mother in doing so.  The mother had finished four years of study during the years 2009 to 2012 and completed a qualification.  Her evidence suggests that she felt independent for the first time and looked back on the parties’ relationship in quite a negative way. 

20. By early 2013, there was strong disagreement over the father’s wish for the children to stay regularly in his home.  The children were not in the habit of doing so.  They were used to him coming to and staying with them in the mother’s home.

21. In April 2013 the father consulted solicitors who wrote to the mother about parenting arrangements.  The mother reacted dramatically to this development as if it were a personal insult or threat.  In fact, it was a legitimate step reasonably open to the father.  The mother conceded that the letter from the solicitors was neither rude nor threatening. 

22. Unfortunately, family relationships broke down between the parties (the children with the father, the mother with the paternal grandmother) such that, other than for interviews with a Family Consultant in 2013 and Dr E in April 2014, the children have had no contact with the father at all for two years.

23. Both children expressed to the single expert in April 2014 very strongly a wish for that state of affairs to continue.  The view of the single expert, a child and family psychiatrist of considerable experience, is that the children are aligned with the mother.  They have “taken her side”.  The evidence certainly supports such a finding.  However, there are glimmers of interest and hope in the children’s statements about the father and the future.

24. There was also a confident statement from the mother in the witness box that she was certain that the children would seek out the father and restore a relationship with him after they had turned 18.  Of course, the father is hopeful, and perhaps the mother is beginning to consider, that five or six years will not have to pass until that happens.

The Law – Parental Responsibility

1. The parties take a different position to each other on the subject of parental responsibility.  The father proposes equal shared parental responsibility.  The mother wishes to have sole responsibility to the exclusion of the father.  I am asked to determine that issue.

2. Parental responsibility in relation to a child means all the duties, powers and responsibilities and authority which, by law, parents have in relation to children (s 61B).  Each of the parents of a child who is not 18 has parental responsibility for the child (s 61C).  This is so whether or not the parents are married and despite any changes in the nature of their relationship.  It is not affected by parents separating or by either or both of the parents marrying or remarrying. 

3. The position at law that each parent has parental responsibility is subject to any order of a court for the time being in force (s 61C(3)).  So far as I can see, no order has been made regarding parental responsibility inconsistent with the position at law. 

4. On 9 October 2013, the father consented to an Order that he be restrained from attending the premises where the children reside, attend school and from the bus stop where the children caught the bus to and from school.  Accordingly, the duties and obligations of parental responsibility have remained in place for the father, but his ability to spend time with the children has been severely constrained.  He consented to that Order but his subjective belief that the mother has control of the relationship must stem in part from this situation. 

5. The father has paid child support as assessed; although, it has varied in relation to dental expenses, which the mother has had to bear upfront until such time as instalment payments have been completed. 

6. The order for allocation of parental responsibility is a parenting order (s 64B).  When a court is asked to make a parenting order, the court is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  In this case, that is the central matter in dispute. 

7. Section 61DA(2) of the Family Law Act 1975 (Cth) (“the Act’) says this:

   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.

   In addition, s 61DA(4) of the Act says this:

   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. 

Family Violence

1. Whether or not there had been family violence was a continuing issue in the matter: the mother alleging that there had been and the father denying any physical violence and agreeing that there had been mutually abusive verbal conduct. 

2. Family violence is defined in section 4AB of the Act as meaning:

   … violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.

   Section 4AB(3) further says:

   … a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

3. In this matter, other behaviour by the mother or the father may have caused the children to be fearful; their language in particular and the volume of their voices.  Some other behaviour by the father may also have caused the mother to be fearful. Namely, abusive language and some conduct in 2008 where he came to the maternal grandmother’s home. 

4. What is clear is that other behaviour by the mother – in this case, verbally abusive language – did not cause the father to be fearful.  The mother, in fact, alleged a history of family violence during her relationship with the father, giving some examples, “I’ll cut your face if you ever try and leave me”.[6]

   [6] Affidavit of the mother filed 30/07/2013, par 6

5. The father, whilst conceding arguments generally, specifically denied saying those words, and denied making threats generally.  He repeated those denials in the witness box.  In her first affidavit, the mother gave no context to this alleged threat; no details as to the time, date, place, context or response by her.  In her trial affidavit the mother said the threat was made during a weekend trip to Sydney.  I assume, but do not know, that that was during the course of the relationship.  There is no suggestion that the father, had he made such a threat, acted or attempted to act on it.  I cannot come to any conclusion about whether or not that threat was issued. 

1. The father said that there had never been physical violence:[7]

   We did have arguments and during those arguments I did engage with [the mother] in a loud voice.  [The mother] engaged in our arguments equally.  We both used offensive language.

   [7] Affidavit of the father filed 19/06/2013, par 11

2. In particular, the father did not deny the mother’s assertion that he regularly said to her, “Get the fuck out of my home.  Get out of my house, you fucking bitch.”[8]  Whilst very unpleasant and confronting, I accept that it was likely to be such language used by both parties at times.  The evidence bears it out. 

   [8] Affidavit of the mother filed 30/07/2013, par 7

3. There was also an incident about four months before the parties separated in June 2008.  The father said that the mother called the police and that he had had “some alcohol that day”.  The police attended at the home but took no action.

4. There is a police record of what happened on that evening between 10.00 pm and midnight in the parties’ home.[9]  First of all, the children were stated not to be present.  The mother reported that an argument had begun over whether or not the parties should have sexual intercourse, she refusing the father’s invitation.  The mother went into another room and phoned the police.

   [9] Exhibit 4

5. I take into account that this was the first time in a 10 year relationship, at least on the evidence before me, that the mother had called the police.  She met the police at the front door of the residence, provided details of the incident, but requested that no apprehended violence order be taken out.  Police record these comments:

   Victim happy to return to [the father] … Fears held by victim … nil fear … Fears held by police … nil fear … Actions taken by police … nil.

6. I do not consider that the mother was, in any way, not acting genuinely on this occasion.  The father concedes that he was affected by alcohol at the time, which may not only have affected his behaviour, but also his subsequent memory of events on the evening.  The mother was likely fearful of the father on this occasion.  The fact that she called the police, perhaps to defuse a potential situation, suggests that it was a bit different and gives weight to her feeling of fear on that occasion. 

7. In November 2008, it is uncontentious that the mother moved herself, the children and her son, Mr D, out of the family home and into the maternal grandmother’s home.  There was no advance notice given to the father.  The mother had taken legal advice prior to leaving.  The mother referred to this in her oral evidence as, “a safe way to leave”.

8. The mother undoubtedly anticipated that the father would be very upset, disappointed and emotional.  The father rang the mother and, soon after, attended at the home of the maternal grandmother.  The mother had rung the police, it appears to me as a precaution, which may have been sensible, given the level of emotion and shock which appears to have been operating for both parties at this time. 

9. The mother says that the father said to her, either:

   Your blood will be spilt over this

   Or

   There will be bloodshed

   The first is a version given by the mother in her affidavit, the second is said to be the version given to police. 

10. The father denies using either of those phrases and says rather that he said to the mother, “there will be blood on your hands after this”, meaning, “you will be responsible.”  And in the father’s own view, it also meant, “you’ll feel guilty about leaving.” 

11. I am unable to determine what exact words were used and with what intention, but I have no doubt that there was a very emotional and angry confrontation between the parties on that day in November 2008.  The police arrived and escorted the father home, and required him to relinquish his firearms, which he did.  An apprehended violence order was taken out and not proceeded with by the mother.  It was withdrawn and dismissed about eight days later.  That the mother did not pursue the apprehended violence order does not necessarily mean that she was or was not fearful. 

12. C has a memory of this day.  Dr E said that for a five year old, this “slinging match”, as described by the Dr E, would have been anxiety provoking, “C might have created a monstrous scenario because it was really scary for her”. C was exposed to family violence on this day.  The mother, the maternal grandmother and both children may also have felt anxious in the maternal grandmother’s home. 

13. That is not to ignore the fact that C was still worried six years later, bringing up an inaccurate account to Dr E of being told to hide in a cupboard on that occasion.  The mother denied that she or anyone else had told C to do that, and probably, in fact, she did not.  If this memory has not been kept alive by the maternal family, it is certainly not being defused either.  The father says he visited the mother and children in the home of the maternal grandmother at the mother’s invitation, and that she said, “I’m sorry it went as far as it did”.

14. It seems to me that those are the most significant aspects that are raised in relation to family violence.  However, there are some other matters.  The mother alleged threats of ‘bikie friends’ being brought in to play; of her phone being monitored by a friend of the father’s in Telstra;  and of B having said in a phone call from the father’s home, “Dad will kill me for ringing you”.

15. I do not consider that those threats or concerns were substantiated;  however, it can be said that the mother experienced family violence in the way I have described in terms of some fear, and that the children were, on at least one occasion, exposed to family violence.

Facebook Posts

1. The other aspect of deciding about parental responsibility is, really, at large in the discretion of the judge. Other evidence which rebuts the presumption relates to the parties’ attitude to each other and their ability to communicate and cooperate and compromise about important matters involving the children.  They do not presently enjoy a relationship that anywhere resembles the ability to do that. 

2. There was, in evidence before me, photocopies of Facebook posts made by the mother to various friends and relatives about the father.[10] They are disrespectful, contemptuous and sarcastic.  These documents, whilst admissible, were obtained by the father without the knowledge or consent of the mother.  The father did not lead evidence-in-reply about how or from where the material was obtained.  His Counsel referred to “sensitivity” around that topic.  I infer that one of the mother’s Facebook “friends” forwarded the material to the father.  The word “friend” has been degraded in the context of social media so that it is possible and not uncommon for users of social media to have friends they have never met and know little about.

   [10] Exhibits 5, 6, 7

3. Despite privacy settings, any one of the “friends” can copy, forward and print and then post material to others.  The children in this case have been and probably still are Facebook friends of the mother.  The risk of the children being exposed to the negative, critical and derogatory views of the mother, her friends and relatives about the father is a real one.  The mother felt, understandably, that her privacy had been invaded when she was confronted with this material during cross-examination.  It had been.  However, it has to be said that the risk of one of the “friends” doing what was done should have been obvious to the mother and more caution exercised.

4. The evidence of the anger each one feels about the other was apparent through this issue and others.  The genuinely held belief by each that the other has controlled the relationship in an overbearing way was on display.  Their inability to speak to each other is also clear, although both parties agree that they would be able to send text messages confined to particular issues relating to the welfare of the children. 

Conclusion

1. The state of affairs of the parties’ current relationship is the evidence which rebuts the presumption in my view.  Had it only been those matters that I have made findings about in relation to family violence, I would consider that the parties’ total separation and the ability for the children to move without the parties being brought in contact, might have been sufficient to enable equal shared parental responsibility to be considered.

2. But it is the current state of the parties’ relationship, and the evidence about that, which is the rebutting factor.  I have no doubt that the father has an interest and wish to meet his rights and obligations as a parent.  Dr E was clear that, in her opinion, the father is interested in and does love the children and wants them to know he is open to restoring their relationship.  Whilst the process that the parties are agreeing on continues, and no doubt it will take some time, there is some risk that that process itself could be derailed if the parties were forced to communicate about long term issues which they have different views about.

3. For that reason, I have made an order that the mother have sole parental responsibility with detailed reporting and consultation requirements, including finally advising the father of any particular decision taken. 

4. The order about how the parties communicate was virtually agreed by them during the course of submissions and that order has been made. 

5. There is also a restraint on either parent posting critical and derogatory remarks on social media and there is a notation that the Independent Children’s Lawyer will attend when the Orders are explained to the children.

Costs

1. In relation to the father, having heard the submissions, I consider that the father probably does have a capacity to make a contribution to the costs of the Independent Children’s Lawyer but I take into account, under s 117(2A)(g) of the Act, the fact that the father has paid for the whole of the Expert Report prepared by Dr E in the sum of $6,600. I do not however take into account the costs of having the single expert available, particularly since it was the father who required Dr E to be present. However, it is a substantial contribution in addition to his own private costs and on that basis I will not make an order for him to contribute.

2. In relation to the mother, the mother has a professional qualification and is employed.  That was not the case at the time – at least, I do not think it was the case at the time when the orders were being made for the preparation of the report but in any event, the mother did not contribute to the costs of the Expert Report.  And it has to be said that the presence and assistance of Dr E was of great value to both parties but particularly so for the mother who was self-representing and it does seem to me that there should be some contribution by the mother, although time should be allowed for her to pay.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

9 March 2015.

Associate:

Date:  24 March 2015