Barton and Jermyn

[2007] FamCA 319

FAMILY COURT OF AUSTRALIA

BARTON & JERMYN [2007] FamCA 319

FAMILY LAW - CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility
FAMILY LAW - CHILDREN - With whom a child lives - Child’s views

APPLICANT: Mr Barton

RESPONDENT: Ms Jermyn

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: PAF 2068 of 2004

DATE DELIVERED: 12 April 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 2 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Father, appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared on her own behalf

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Clarke

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Mansour, Legal Aid Commission of New South Wales

Orders

1. That all parenting orders relating to the child D (born in August 1994) are discharged.

2. The parties shall have equal shared parental responsibility for the said child.

3. The said child shall live with the applicant father.

4. The mother shall spend time with the said child as follows:

   (a)on each alternate weekend from 6:00pm on Friday to 4:00pm on Sunday (or 4:00pm on Monday if there is a long weekend) or as otherwise agreed between the parties.

   (b)for one half of each of the school holidays as agreed between the parties, or failing agreement, for the first half in odd numbered years, and the second half in even numbered years.

   (c)         such other times as the parties may agree.

5. Unless and until the mother obtains her own independent means of transport, the father will deliver the child to the mother’s residence, or as directed, and collect him from such residence, or as directed.  Otherwise, the parties shall share the travelling.     

6. Each party will facilitate the said child communicating with the other party by telephone, when he is in their respective care.

7. That the father shall forthwith authorise any school attended by the child to provide to the mother, at her expense, copies of all school reports and bulletins and correspondence relating to the child and his school activities, together with any order forms for school photographs.

8. The mother shall be entitled to attend any school function at which the attendance of parents is allowed.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2068  of 2004

Mr Barton

Applicant

And

Ms Jermyn

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. The parties are the parents of two children:

   D born in August 1994 (12) and

   J born in March 1999 (8).

   Initially the parties both each sought orders in respect of each of their sons.  In fact, however, the court lacks jurisdiction in relation to J because of orders of the Children’s Court of New South Wales made on 5 April 2002.These orders had the effect of placing J in the care of his father until he attains the age of 18 years.

2. The present proceedings were commenced by the father in an Application filed on 9 July 2004.  He sought orders to the effect that D and J live with him and spend time with their mother during half of all school holidays and otherwise as agreed.  In her Response filed on 1 September 2004 the mother sought orders to the effect that both boys remain with their father for a period of 6 months, after which they would move to live with her.  On 14 December 2006 the father filed a document which set out the orders which he now seeks.  His current proposal is in similar terms to his initiating application, except that there is a provision for the boys to spend weekend time with their mother.

3. The proceedings entered the Children’s Cases Program on 4 February 2005.  On that date a list of issues was agreed as follows:

   1.        What are the wishes of the children in relation to parenting orders?

2.What is the nature of the children’s relationship with each of their parents, each parent’s partner and the mother’s children A and V?

3.What would be the likely effect on the children of a change in the present arrangements whereby they live primarily with their father?

4.Has the mother overcome the problems which led to DOCS intervention and the removal of J from her care by the Children’s Court order on 5 April 2002?

1. On 4 February 2005 I ordered a Family Report to address these issues and any other matter which the Family Consultant considered relevant to the welfare of D.  Ultimately, Mr L prepared 2 reports, dated respectively 17 August 2005 and 15 December 2006.  Mr L gave oral evidence on 23 September 2005.

2. No agreement was able to be reached in relation to parenting arrangements for D, following the release of the first Family Report and the oral evidence of Mr L on 23 September 2005.  I thus made directions for the filing of affidavits and granted leave to the parties to approach the List Coordinator to obtain 2 further hearing days in order to finalise the proceedings.  The directions which I made in relation to affidavits were that the father file affidavits only by himself and his wife and that the mother file affidavits only by herself and her partner, Mr G. 

3. For reasons unknown to me, the proceedings then languished until being fixed for finalisation before me on 15 and 16 January 2007.  Due to a crisis in my family I was unable to hear the proceedings on those dates.  Further hearing time was then allocated in early March 2007. The father sought an adjournment, however, because he was due to start a new job in that week.  Over the strong objection of the mother, I granted the father’s application for an adjournment.  I took the view that the father’s ability to provide financial support for the children should be a high priority.  The hearing was finally completed on 2 April 2007, when I made orders in accordance with a minute submitted by the Independent Child’s Lawyer.  I now furnish my reasons for judgment. 

BACKGROUND

1. The father, who is 38, and the mother, who is 35, began to live together in about 1991 and separated finally in 1998.  Initially, both D and J lived with their mother but both boys have been in the care of their father since 2002. 

2. The father and his wife Mrs B formed a relationship in 2001 and married in 2003.  The mother has been in a relationship with her partner Mr G for approximately 7 years.  There seems to be some uncertainty as to the current status of their relationship. 

3. The mother and her partner have 2 children: 

   V born 6 February 2001 (6)

   A born 17 January 2002 (5)

   V and A have been placed in the care of their father, Mr G,  pursuant to orders of the Children’s Court of New South Wales. 

4. On 5 April 2002 the father gave an undertaking to the Children’s Court that he would not allow the mother to have unsupervised contact with D.  By agreement, nonetheless, the mother spends unsupervised time with both D and J on weekends and during school holidays.  The father said, and I accept unreservedly, that he permits this unsupervised time only because he is satisfied that the mother has made considerable progress in dealing with the problems which prompted the Department of Community Services to take action in 2002. 

5. The mother described these difficulties as follows:  “I started snapping, losing my temper, self-harming and stopped cleaning my house”.  Both she and the father said that no DOCS officer has contacted them at all since the Children’s Court orders were made in 2002.  In my view, it is greatly to their credit that they have managed to discuss the welfare of their children and to make arrangements for the boys to have quality time with their mother. 

6. The father and his wife live with D and J in a house which they own at B in Western Sydney.  He works as a storeman between 7:00am and 3:00pm, which means that he leaves home at about 6:00am and returns about 3:40pm.  The father’s wife is available to care for the boys when the father is at work.

7. The mother and her partner live on the NSW Coast.  Since November 2005 she has lived in a single room at a hotel in W.  The mother’s partner, V and A live in rented accommodation at E.  D and J stay in this home when they visit their mother, on which occasions she lives there as well.

THE PROPOSALS OF THE PARTIES

The father’s Proposal

1. Essentially, the father proposes that arrangements for D’s care continue as at present.  D would remain at P High School and have ongoing private tuition to assist with his educational problems.  The father would permit him to commence playing rugby league with a local team in the near future.  It seems that he has considerable talent in this sport.

The mother’s Proposal

1. The mother proposed that D live with her on the NSW Coast.  She would move into her partner’s house, thus D would live with his siblings V and A.  Both parties are very supportive of D’s relationship with his other parent.  The only impediment to his spending more time with the non-residence parent was the distance between the respective homes and the cost of travel.  The parties live approximately 110 kilometres apart and they are both in fairly straightened financial circumstances.

The Proposal of the Independent Child’s Lawyer

1. The Independent Child’s Lawyer submitted a Minute of Proposed Orders as follows:

   1.That all parenting orders relating to the child D (born in August 1994) are discharged.

   2.The parties shall have equal shared parental responsibility for the said child.

   3.The said child shall live with the applicant father.

   4.The mother shall spend time with the said child as follows:

   (a)on each alternate weekend from 6:00pm on Friday to 4:00pm on Sunday (or 4:00pm on Monday if there is a long weekend) or as otherwise agreed between the parties.

   (b)for one half of each of the school holidays as agreed between the parties, or failing agreement, for the first half in odd numbered years, and the second half in even numbered years.

   (c)such other times as the parties may agree.

   5.Unless and until the mother obtains her own independent means of transport, the father will deliver the child to the mother’s residence, or as directed, and collect him from such residence, or as directed.  Otherwise, the parties shall share the travelling.

   6.Each party will facilitate the said child communicating with the other party by telephone, when he is in their respective care.

   7.That the father shall forthwith authorise any school attended by the child to provide to the mother, at her expense, copies of all school reports and bulletins and correspondence relating to the child and his school activities, together with any order forms for school photographs.

   8.The mother shall be entitled to attend any school function at which the attendance of parents is allowed.

2. The father consented to the making of such orders.  The mother maintained her application that D live with her.

APPROACH TO THESE PROCEEDINGS

1. The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.

2. In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration:  section 60CA.  In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).

3. Section 60CC(2) contains 2 ‘primary considerations’ which apply to the determination of what is in a child’s best interests.  The first consideration is the benefit to a child of having a meaningful relationship with both parents.  The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.  Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.

4. Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.  In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child.  It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.

5. Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.  This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.

6. It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1).  The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).

7. Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order.  This  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 child abuse or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility:  section 61DA(4).

8. It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent.  The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.

9. If an order provides that 2 or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached.  These decisions are to be made jointly by the persons who share parental responsibility for the child.  Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision.  It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues:  section 65DAE.

10. If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent.  If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent:  section 65DAA.

11. In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration:  section 60CA.  The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

THE CONSIDERATIONS

The Primary Considerations

1. In my view, no good purpose would now be served by delving into the circumstances which led to the making of the Children’s Court orders in relation to J in 2002 and, later, V and A.  I accept that the mother has substantially come to terms with the difficulties which gave rise to these proceedings.  As I have said, I accept that the father would not have cooperated in arranging for the boys to spend unsupervised time with her if he were not satisfied that this was so.

2. I digress to observe that it was obvious during the proceedings that the mother has had a very hard life since the time when she was a child.  I hope that she continues to receive strong support from her partner and that their plans for the future come to fruition. 

3. There was nothing in the evidence which suggested any need to protect D from physical or psychological harm.  The mother said that J periodically makes wild statements of mistreatment at the hands of his father and stepmother.  To her great credit, the mother recognised that these statements are nothing but the product of J’s vivid and very active imagination.  She has the insight to recognise the value of discussing these matters with the father and his wife. 

4. I have no doubt that D derives great benefit from having a meaningful relationship with each of his parents.  I endorse the remarks made by counsel for the Independent Child’s Lawyer, to the effect that the mother has a great deal to offer as a parent.  I note that Mr Clark indicated firmly that the Independent Child’s Lawyer’s support for the father’s application was in no way a criticism of the mother or any kind of judgment of her as a person or a parent. Likewise, my decision to make orders in accordance with the proposal of the Independent Children’s Lawyer is in no way an adverse reflection on the mother as a person or a parent.

THE ADDITIONAL CONSIDERATIONS

1. I have had regard to all of the factors set out in section 60CC(3) but I will refer only to such matters as seem to me to be relevant to these proceedings.  I have also taken into account the requirements of section 60CC(4). 

2. For reasons to which I have already referred, I am comfortably satisfied that both parties have fulfilled their responsibilities as parents in the terms of section 60CC(4).  They have both done their best to ensure that D spends quality time with his mother.  Although I have no jurisdiction in relation to J, the same observations can be made in regard to his relationship with his mother.

   section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

3. There was independent evidence as to D’s views available from the 2 Family Reports.  It seems to me that J’s views also warrant consideration, although he is not the subject of these proceedings.  Similarly, I take into account the mother’s evidence that both V and A have expressed to her a strong wish to live with their brothers.

4. In the first Family Report Mr L made the following observations in relation to D:  “Further interview indicated that the child has a tentative preference to live with his father.  It was put to [D] that if he lives with his mother he would miss [his stepmother].  He answered ‘yes’ and added ‘I would miss Dad and the dogs too’.  He was not sure how he would adjust to living with his mother.”  In relation to J, Mr L made the following observations in August 2005:  “He said that he had enjoyed playing in the observation room with each of his parents.  He then disclosed that his mother had told him that she was going to get him back and then said ‘but they won’t listen to Mum’.  Regarding a residence preference [J] said ‘I want to live with my Mum and I want to live with [G] and [stepmother].  He added ‘when I am at Mum’s I cry because I want to live with [G] and [stepmother].  When I am with Dad and [my stepmother] I cry because I want to live with Mum’.”  I assume that the reference to “[G]” is in fact his father “[first name]”. 

5. The views of both of the boys had become stronger by the time of the second interview by Mr L on 5 December 2006.  In relation to D, Mr L reported as follows:  “When interviewed [D] said that he enjoys visiting his mother.  When asked if his mother wants him to live with her, the child said ‘I think so’.  He then said that he wants to attend [P] High School.  It was suggested to [D] that he could attend the [S] High School if he lives with his mother.  He answered ‘yes, but I have been wanting to go to [P] for ages’.  The child went on to say that he intends to live with his father until he is 16 years old or until he secures his driving licence.  At that point he said he anticipated he would be grown up and would live independently.  He said ‘I could drive up’ and see his mother.  It was suggested to [D] that he really loves his mother and wants to see her, but at this stage he wants to live with his father.  He answered ‘yes’.  When asked how he thought his mother might feel about his decision [D] said ‘sad a bit, but happy that I made a decision’.”

1. Mr L noted a number of statements made by J which, superficially, might indicate that he has observed violence between his mother and her partner.  Mr L assessed, however, that “he showed no fear or reticence of his mother either when observed or interviewed.  His account was not confirmed by [D] and [the mother’s partner] indicated that [the mother] has now overcome the emotional problems which previously beset her.  Thus it may be that [J] is recalling past events as present events”.  J told Mr L  that “he is going to live with his mother when he is older” and that he “really loves living with [his stepmother] and [father]”. 

2. Mr L assessed as follows in relation to D’s views:  “[D] was clear in his views and indicated an unambiguous desire to live with his father.  It was also apparent that his connection with his mother was also important to him and his desire to be significantly involved with her was clear.”  Mr L was of the view that:  “Over the past year he has gathered maturity and moved from tentative, somewhat even-handed responses, to a clear preference”.

   section 60CC(3)(b): the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

3. All of the available evidence suggests that D has a very good relationship with both of his parents and with his stepmother and stepfather.  The mother’s partner refused to be observed with the boys during the December 2006 assessment but D spoke positively about him.

4. In Mr L’s opinion, D’s relationship with his stepmother is a very important one for him.  He said in his first report:  “It was apparent that he has a positive relationship with his father and significantly, with his stepmother.  He identified [his stepmother] as the person he confides in, a facility of which he ought not to be deprived of by a change in residence”.

   section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

5. I have referred above to the evidence which is relevant to this factor.  As I have indicated, I am satisfied that both parties have displayed a willingness and ability to facilitate and encourage a close and continuing relationship with the other parent.

section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents;  or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. A change in D’s living with his father and stepmother to residence with his mother and her partner was not supported either by the Family Consultant or the Independent Child’s Lawyer.  One major effect of such a move would be to separate D from J but, as the mother said, a positive outcome would be that he would live with V and A.

2. I have some concerns as to the stability of the mother’s life at present.  I accept her evidence that she and her partner are still a couple and that his home is available to her and D.  It does seem, however, that there are some unresolved issues in their relationship at present.  As I have said, she has lived at a hotel at W since about November 2005.  As well, her partner has been busy with the setting up of a business on the NSW Coast, to the extent that he has not had time to seek a rescission of the Children’s Court orders in relation to V and A. 

3. The mother said that she and her partner were evicted from the last accommodation which they shared due to non-payment of rent.  I have some concerns, therefore, as to their present financial stability.  I accept entirely that the mother has a strong desire to find employment and that she would be willing to take on almost any kind of job.  I hope that her efforts in this regard prove to be successful. 

4. The reality is that D has a stable and happy life with his father and stepmother.  In my opinion, the arrangements proposed by the mother are uncertain and untried and may well deprive D of his present stability.

   section 60CC(3)(e):  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

5. I have referred above to the practical difficulty of the distance between the parties’ homes and the economic constraints on D’s spending more frequent time with his non-residence parent.  There is no solution to these difficulties unless the father moves to the NSW Coast or the mother relocates to Sydney.  Neither scenario seems to be likely at this stage. 

section 60CC(3)(f): the capacity of:

(i)each of the child’s parents;  and

(ii)any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs;

section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. A major component of the mother’s case was that D suffers from educational and behavioural problems.  She tendered a school report dated 28 February 2007 (exhibit 4) which gives rise to real concerns as to his behaviour at school and academic performance.  It is also a matter of significance, in my view, that the father seemed to be unaware that D has been placed on lunchtime detention.

2. On the other hand, the father and stepmother have taken steps to address these problems.  They have arranged for D to have tuition with the M Organisation and they will organise counselling for him if necessary.

   section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

3. Both parents seem to have involved D in these court proceedings, which have been unnecessarily protracted due to no fault of theirs.  It can only be hoped that D will settle down now that a decision has been made and he knows the direction which his life will take from this point.

CONCLUSION

1. If the parties lived closer to each other, I would have given very serious consideration to an arrangement for D which involved substantially shared care by his parents.  I would assume that they would have adopted a similar regime for J.  In my opinion they both have a great deal to offer to their sons.  As it is, however, distance and geography make such an outcome impossible.

2. I am of the view that D is happy living with his father and stepmother and that they provide him with stability.  There is no doubt that D has a very loving and positive relationship with his mother as well and that he enjoys his time with her.  As I have said, however, I doubt that she can provide him with the equivalent level of stability at present.

3. The mother raised concerns about D’s behaviour and educational progress, which proved to be soundly based and entirely legitimate.  I accept unreservedly that she has a strong desire to ensure that D does not repeat the mistakes which she made, in terms of her education.  I accept also, however, that the father and his wife have taken proper steps to address these problems.

4. For these reasons, I have made orders in accordance with the Minute submitted by the Independent Children’s Lawyer.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate: 

Date:  12 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BARTON & JERMYN