Bancroft and Willard (No.2)

[2020] FCCA 2798

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANCROFT & WILLARD (No.2) [2020] FCCA 2798

Catchwords:
FAMILY LAW – Parenting – concerning three children aged 10, 12 and 13 – where the children live with the father in Town B and spend time with the mother in Darwin – where the father unilaterally relocated the children – where the children have been exposed to the high level of conflict between the parties – where the children have expressed wishes to continue living with the father and spend time with the mother.

Legislation:

Family Law Act 1975 (Cth) ss.60CC(3), 65DAA, 102NA, Pt. VII Div 1(BA)

Applicant: MS BANCROFT

Respondent: MR WILLARD

File Number: DNC 337 of 2017

Judgment of: Judge Young

Hearing dates: 23 & 24 September 2020

Date of Last Submission: 24 September 2020

Delivered at: Darwin

Delivered on: 24 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Story

Solicitors for the Respondent: Story & Associates

ORDERS

THE COURT ORDERS:

1. That all previous parenting orders be discharged.

2. That the parties have equal shared parental responsibility for X born in 2006, Y born in 2008 and Z born in 2010 (“the children”).

3. That the parties shall make a genuine effort to come to a joint decision about all major long-term decisions, including:

   (a)The children’s education;

   (b)The children’s religious and cultural upbringing;

   (c)Any change to the children’s living arrangements in the event that they impact upon one parent’s ability to spend time with the children; and

   (d)The children’s health.

4. That the children live with the Father.

5. The children spend time with the Mother during school holidays as follows:

   (a)For all of the term one school holidays in each year, with the children to travel from Town B to Darwin on the first Saturday at the conclusion of term one and to return to Town B after the Mother’s birthday in the event school holidays finish earlier and otherwise on the Sunday prior to the recommencement of school;

   (b)For two weeks of the term two school holidays in each year, with the children to travel from Town B to Darwin on the first Saturday after the conclusion of term two and to return to Town B on the third Saturday thereafter in each year.

   (c)For the first four weeks of the term four school holidays in odd numbered years, commencing on the first Saturday after the conclusion of term four and to return to Town B on the fourth Saturday thereafter; and

   (d)For the last four weeks of the term four school holidays in even numbered years, commencing on the third Saturday after the conclusion of term four (or the following day if that Saturday is Christmas Day) and to return to Town B on the seventh Saturday thereafter.

6. That for the purpose of school holiday travel, the following shall occur:

   (a)The Father shall arrange the airfare bookings to be made and paid for, for the children’s return airfares from Town B to Darwin return for the term two and term four school holidays in each year pursuant to Order 5(b), (c) and (d) herein;

   (b)The Father shall book and pay via Town C Local Airport, for the children’s return airfares from Town B to Darwin for the term one school holidays pursuant to Order 5(a) herein at the cheapest fare available and shall provide the Mother via email a copy of the itinerary and tax invoice for the booked airfares not less than eight weeks prior to the date of the children’s travel and the Mother shall reimburse the Father one half of the total cost of the return airfares not less than six weeks from the date of receipt of a copy of the tax invoice;

   (c)All airfares booked for the children shall ensure that the children fly on the morning Town B flight and the Father shall provide the Mother with a copy of the children’s airfare itinerary immediately after booking; and

   (d)The Father shall email the Mother to confirm that the children have boarded their flight and the expected time of the flight’s arrival in Darwin;

   (e)The Mother shall email the Father to confirm that the children have boarded their return flight and the expected time of the flight’s arrival in Town B.

7. In default of the children travelling by airfare in accordance with Order 6 (a) to (c) herein, the following Orders apply:

8. That the Mother be permitted to travel by motor vehicle between Town B and Darwin with the children during any time the children are ordinarily permitted to spend time with the Mother pursuant to the Orders made 01 April 2019, provided:

   (a)If the Mother returns to Town B with the children two days prior to the commencement of school, the children will be returned to father that day; or

   (b)If the Mother returns to Town B with the children earlier than two days prior to the commencement of school, the children shall be permitted to spend time with the Mother and be returned to the Father the day prior to the commencement of school.

9. That in the event the Mother is in Town B, the Mother be permitted to spend additional time with the children, with such time to be at the election of the Mother on the following basis:

   (a)That the Mother provide the Father with not less than ten days written notice of the intended time spent;

   (b)That during the time spent, the children attend all extracurricular and schooling activities;

   (c)Provided the Father has not previously notified the Mother earlier than receipt of the Mother’s notice referred to at Order 9 (a) herein of his intended time or special event with the children;

   (d)That the time spent shall not occur during the Father’s school holiday time;

   (e)That any time spent shall not include any of the days of significance unless otherwise agreed; and

   (f)That the time spent is to occur on no more than two occasions in any school term.

10. That for the purpose of changeovers, the following shall occur:

    (a)Changeovers shall occur at the Town B Airport and the Father shall respectively facilitate the children attending for collection by the Mother;

    (b)In the event the Father elects to transport the children from Town B to Darwin by road or the Mother from Darwin to Town B by road, the changeover shall occur at the Darwin Airport or the Town B airport; and

    (c)In the event the Mother travels from Darwin to Town B to spend time with the children, the Father shall pay the Mother the sum of $150 for her fuel costs being one half of the anticipated fuel costs for each visit with such costs with any one calendar year not exceeding $450 per annum.

11. The Father shall ensure upon the children travelling to spend time with the Mother that the children travel with adequate clothing including footwear and the children’s personal items and the Mother shall upon the children returning to the Father ensure the clothing, footwear and personal items are returned with the children to Town B.

12. That the Father shall ensure the mother is always listed as an emergency contact with any school or medical appointments made for the children.

13. That the Mother shall communicate with the children whilst the children are with the Father each Wednesday and Sunday at 7:00pm via FaceTime, Messenger, Whatsap, Skype, HouseParty or any other such media on the following basis:

    (a)The Mother shall instigate the call to the Father’s mobile and the Father shall facilitate the call;

    (b)In the event the call is missed, the Father shall call the Mother’s mobile as soon as possible after the missed communication to ensure the children speak to their Mother that day;

    (c)That the Father provide the children with privacy during any calls with the Mother; and

    (d)That the Father shall not record any of the children’s calls with the Mother.

14. The children shall be permitted to communicate with either party at all reasonable times upon expressing a wish to do so.

15. That all communication between the parties take place by email and be limited to matters concerning the children.

16. That the parties will keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change.

17. That both parties be permitted to attend at the children’s school, school functions, participate in parent/teacher interviews and any extracurricular activities that the children are engaging or attending to undertake.

18. That the children be permitted to travel intrastate, interstate and/or overseas with either of the parties provided that the party with whom the children are to travel provides to the other party not less than 14 days written notice and provides itineraries, contact addresses and telephone numbers for the children whilst they are interstate or overseas so that the children can communicate with the other party at all reasonable times.

19. That each party shall be restrained by injunction from:

    (a)A party who proposes to make any major long-term decision in relation to the children, shall not be permitted to do so unless there is an agreement in writing from the other party;

    (b)Denigrating, insulting, belittling or speaking in any way that is not respectful the one another;

    (c)Recording any phone calls that occur with the children;

    (d)Exposing the children to cigarette smoke;

    (e)Permitting the children to be present in or near any person affected by illicit substances and/or having consumed alcohol to excess;

    (f)Denigrating the other party or the party’s partner or members of that party’s family in the presence of or within the hearing of the children or any of them and each party remove the children from the hearing of anyone else who may be denigrating the other party or that party’s partner or family;

    (g)Discussing the court proceedings with the children or allowing the children to read or view any court documents;

    (h)That neither party or party’s partner or extended family member shall be permitted to physically discipline the children; and

    (i)That each of the parties be restrained from permitting the children to be exposed to verbal abuse during any period the children are present with each of the parties.

20. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist 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 Bancroft & Willard (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 337 of 2017

MS BANCROFT

Applicant

And

MR WILLARD

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case concerning three children, X, who is 13, Y, who is 12 and Z, who is 10. The children live with their father in Town B. He is employed there as a public servant and he is, in fact, a permanent, full time, Employer D employee. The father had re-partnered and was living with his wife, who I will call Ms E, until they separated, apparently towards the early part of last year and, as I understand, they have not resumed their relationship.

3. The mother lives in Darwin. She has re-partnered with a Mr F. She has two children, subsequent to her relationship to the father in this matter, G, who is four and H, who is two. There was an older child of the mother who, I understand, would now be about seven years old, who has been placed or adopted by the sister – the evidence was a little bit unclear about that. So the children who are subject to these proceedings are, of course, X, Y and Z.

4. The parties separated in 2011, and it appears the mother left the former matrimonial home and the children remained with their father. The mother, it appears, worked away.  When I say away, I mean out in the bush for extended periods. She was employed as a labourer and had all sorts of jobs in remote and far flung parts of the Northern Territory. It seems that, while she maintains a relationship with the children, the time the children spent with her was somewhat irregular.

5. In 2015, the mother began living at the same premises as the father, and his then partner, Ms E. The circumstances of that are somewhat unclear in the evidence. As I understood, at least at one point, a rural block was rented and had two houses on it, a major house and a smaller house. It seems that initially the mother may have lived in the smaller house and the father in the other house. This chronology was somewhat vague in the evidence.

6. At some point, Ms E left the father and, as I understand it, then went to Town B. Somewhere along this continuum the mother began living in the main house with the father. The nature of their relationship, if any, was not clarified in the evidence. It goes without saying that during this period the children spent regular time with their mother, and she was closely involved or engaged in their lives.  Indeed, from the end of 2016 to early 2017, it appears the father worked away, out bush, for an extended period, and the children were cared for by their mother in the arrangement that I have just described.

7. However, in about March 2017, as I understand it or perhaps April, the evidence was a little unclear, the father had returned to live in Darwin in the premises that I have described.  However around about then the mother left that home and either began a relationship or began to live with Mr F. At around about that time, it appears the father may have resumed his relationship with Ms E and he decided to relocate to Town B with the children. I am satisfied that the father’s relocation to Town B was unilateral and was without any consultation with the mother.

8. The reason for his unilateral relocation was clearly to resume his relationship with Ms E and he began living with Ms E in Town B. He also said that employment was an issue but I am not satisfied that that was an element in his decision-making. The father said that he had informed the mother’s lawyer, during a hearing in the Local Court in relation to a domestic violence order application, that he was intending to relocate.

9. As that hearing was in June 2017, I am satisfied that it was impossible for the events to have unfolded as the father said they had unfolded because he had already moved to Town B by the time of the hearing in the Local Court.  I am satisfied, as I say, that the relocation was unilateral and without regard to the children’s relationship with their mother.

10. The affidavits of the parties, or the trial affidavits, both make detailed and lengthy allegations about family violence. It appears that in the past the father has obtained domestic violence orders against the mother, and there have also been mutual undertakings given to each other not to assault and harass each other as a result of these applications.

11. The children told the family consultant, for the purposes of interviews for a family report that was prepared in December 2017, and also for a child inclusive conference memorandum, which was prepared in January 2019, about family violence between their parents that they had witnessed. The children told the family consultant, in fact, on both occasions, I think, that they had seen the mother assault the father, but not the father assault the mother. The father denied and he was not really challenged on this in cross-examination, that he had ever physically assaulted the mother. In any event, I am satisfied that any overt violence between the parties ceased on separation and certainly, if not by the time of separation in 2011, at least by the parting of the ways in early 2017.

12. While I am satisfied that any overt violence ceased then, it is clear from the evidence in this case that a very high level of animosity has continued. They have both made reports against each other, it would appear, to Territory Families, made calls to the police, and so on.

13. There was a set of emails exchanged between the parties put in evidence concerning two dates in April 2019 and another in August 2020. Those emails, or the tone of those emails, suggest a dismissive and hostile attitude by the father to the mother. The mother appears, in the emails, to have maintained a business-like attitude throughout, and certainly not responded with a similar tone to that used by the father.

14. The family consultant, in preparing his family report from 2017, identified an attitude of entitlement and self-righteousness on the part of the father in his attitude to the mother, which was reflected in a reluctance, or indeed refusal, to consult with her about the children, and a dismissive attitude to her concerns. I am satisfied there is evidence of the truth of the family consultant’s observation before me in this case.

15. The family consultant in the family report also identified the mother’s suspicious attitudes towards the father and a readiness to blame him, including blaming him for some of her own mental health difficulties. I should say that in that family report, the family consultant expressed concerns about the mother’s mental health, and one of the recommendations that was ultimately made was that she should seek some psychological intervention. At one point she was committed to the psychiatric ward of Darwin Hospital. In the trial before me there is no evidence to suggest that the mother is presently suffering from any mental illness or indeed that that is in any sense continuing to be an issue.

16. Nevertheless, I am satisfied that the mother was suspicious of the father, hostile, untrusting, and very unwilling to accept his views about anything. In fact, the consultant suggested during his interview with the mother that rather than being held in a waiting room, so to speak, the children should go and play with or be in their father’s care for that time. The mother was, according to the family consultant, reluctant to agree to that. In the view of the family consultant, there was no good reason for that, and it demonstrated, really, the irrational hostility towards the father.

17. In summary, the family consultant was of the view that the relationship between these parents was deeply dysfunctional and was unlikely to change. In both the family report and the child inclusive conference memorandum, produced in 2019 by a different family consultant, the children have consistently expressed a wish to remain living with their father in Town B and to spend time with their mother. Both the girls, Y and Z, indicated that they had been exposed to conflict between the father and his wife Ms E but I am satisfied that that will have ceased because as I understand it, the father and Ms E separated towards the beginning of last year.

18. I was also informed that Ms E has been convicted of a fraud in the Supreme Court as a result of falsely claiming to be suffering from cancer and soliciting money on the basis of that claim. The father said, and I accept, that he was unaware of those matters, except from what he later heard and that those events happened after he had separated from Ms E. I accept that.

19. It is clear that the children have been exposed to a rancorous and hostile relationship between their parents. There is no question that exposure of children to such high levels of conflict, as I am satisfied occurred in this case, is psychologically damaging for children. Both parties have undergone parenting courses, but I am not satisfied that that is likely to have produced any major changes to their attitudes. It goes almost without saying that my findings about the parents in relation to these matters reflect very poorly on their parenting capacity.

1. One of the issues that arose in the case related to X’s health. X is obese and suffers from a medical condition. Surgery is an option. The mother is opposed to any surgery for X. I told the parties that without adequate medical evidence I could not make any clear finding about whether one party or the other had adopted or was adopting an unreasonable attitude in relation to this issue. The father had at one point sought sole parental responsibility in relation to health matters. However, that was not ultimately pressed.

2. While, in a formal sense, the mother has sought an order that the father return to Darwin and the children enter into an equal time arrangement, and that, in the alternative, the children live with her, I am not satisfied that that is a realistic proposition because of two factors. The children have been living with the father primarily, though not solely, since the parties’ initial separation in 2011 and what appeared to be repeated and consistent expressions of the children’s wishes that they remain living with the father. So I am not satisfied that that is a real issue in this case, having regard to what I consider in the best interests of the children.

3. One of the issues that did arise was the question of the time the children spend with the mother. The parties have reached an agreement that the children should spend time with their mother three times a year in Darwin. Both parties appear to agree that the costs should be borne with the father to pay for two of those visits, by air of course, and with the parties to go halves in the other visit.

4. The mother’s position was that, for various reasons that were perhaps not entirely clear to me, it was cheaper for the father to book tickets from Town B, rather than for the mother to book, for example, a one-way leg from Darwin. That seemed to be accepted and it was not an issue in the case. So I am satisfied that it is cheaper if the father does make a booking from Town B. I am satisfied that there is no reason why the father should not book all of those flights and for the third return flight the mother is to reimburse him once that is done.

5. In making parenting orders, the Court is required to follow the legislative pathway set out in Part VII of the Family Law Act, and in particular Division 1, Subdivision BA. The best interests of the child is the paramount consideration in a parenting matter. The primary considerations in determining the best interests of a child are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical and psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

6. I am satisfied that there is no real risk of the children being exposed to family violence at present, particularly as the father and Ms E have separated, and the father and the mother appear to see each other rarely, if at all so that risk has disappeared. Nevertheless, as I have said, while it does not necessarily amount to family violence, the level of conflict between these parents is at an unacceptably high level and, as I have found, is damaging for these children. Nevertheless, the children will benefit from a meaningful relationship with both parents.

7. Additional considerations are found in subsection 60CC(3).  I do not propose to address each of them, though I have given due weight to each of them.  I propose only to speak about the ones that I consider particularly relevant in this case. I have already mentioned the views of the children. They have been canvased on two occasions over some period. The mother said in evidence that Y, I think, had recently expressed a wish to live with her.

8. Something similar was said by the mother to Ms J, I believe, in preparation for the child inclusive memorandum in 2019 and Ms J said that sometimes children will say what parents want to hear. I am satisfied that, particularly given some evidence of the mother engaging with the children in relation to their wishes, that I am satisfied that if Y did express such a wish that it is likely to have been in circumstances identified by Ms J, the family consultant. I have no real doubt that the children’s repeated views that they wish to remain living in Town B with their father are genuine views, and I give them great weight.

9. Further subsection 60CC(3) considerations include:

   b)The nature of the relationship of the child with each of their parents. The children appear to be closely attached to both parents and there is nothing more I propose to say about that.

   c)In regard to the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child, spending time with the child and communicating with the child, I have already mentioned one major, long term issue. That is, X’s health, which is a factor in which these parents cannot agree in any sense.  I indicated to the parties that if the issue of surgery for X is to be pursued, it will really necessitate an application to the Court, in my view, if both parents take implacably opposed views, as they have done at the moment. It appears to me that, on what little of the medical evidence I read, that it may well be too early to be making a decision about that but the time for that decision may well come soon.

   ca)The extent to which each of the child’s parents has fulfilled that obligation to maintain the child. I was told in evidence, and without contradiction, that the mother does not pay child support for the children, being unemployed, or at least not employed, I should say, and having responsibility for two young children.

   d)I do not propose to make any change in the child’s circumstances.

   e)The practical difficulty and expense of a child spending time with and communicating with a parent. There is difficulty and expense in that in this case because the parties live some hundreds of kilometres apart.

   f)The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. I have made remarks critical of both parents about their capacity to provide for the emotional needs of these children. These children have a deep emotional need to be protected from conflict. That deep emotional need has not been met by either parent.

   g)I do not propose to say anything about that.

   h)Is not relevant.

   i)The attitude to the child and the responsibilities of parenthood. I don’t propose to say anything further than that.

   j)There has been historic family violence involving children. Indeed, a section 102NA order was made in this case.

   k)If any family violence order applies. As I understand it there is not current family violence order.

10. As the parties are in agreement there should be an order for shared parental responsibility, I am required under section 65DAA to consider the issue of equal time. In my view, it is not practicable for an order for equal time to be made in this case because of the distance the parents live from each other.

11. There will be an order for significant and substantial time, so far as in possible, given the distance the parents reside from each other. I propose to make orders in general terms that the children will live with the father and that there be equal shared parental responsibility and that the children spend time with the mother three time a year with the times to be one week in the term one holidays, two weeks in the term three holidays, and four weeks in the term four holidays. That is seven weeks out of 12.

12. Obviously, if the parties reach an agreement otherwise that can be varied. For example, if one of the parties wish to have an extended holiday, then maybe the two weeks in midyear becomes three weeks and there is a reduction in one week over Christmas. It is very much a matter for the parents to negotiate about if they can. If they cannot, well, that order holds.

13. There will be an order that the father is to pay for two of those return flights for each of the children, and for the third flight the parents are to share the cost equally but with the father to book the flights in the first instance and the mother to reimburse him half the expense.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 13 October 2020