Berryman and Heenan

[2014] FCCA 570

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERRYMAN & HEENAN [2014] FCCA 570

Catchwords:
FAMILY LAW – Parenting – whether an order for sole or equal shared parental responsibility should be made.

Legislation:

Family Law Act 1975, ss.4, 60CC, 61DA

Crimes (Sentencing Procedure) Act 1999 (NSW), s.10(1)(b)

Applicant: MR BERRYMAN

Respondent: MS HEENAN

File Number: DUC 292 of 2012

Judgment of: Judge Dunkley

Hearing date: 17 February 2014

Date of Last Submission: 17 February 2014

Delivered at: Parramatta

Delivered on: 18 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Harper

Solicitors for the Applicant: Bird Legal

Counsel for the Respondent: Mr Levick

Solicitors for the Respondent: Yeates Betts Solicitors

ORDERS

1. The mother shall have sole parental responsibility for the children, X born (omitted) 2005 and Y born (omitted) 2006 (“the children”).

2. The mother is prohibited, without further Order of the Court or the father’s written consent from:

   (a)Allowing the children to participate in the observances of any religion other than Christian religions;

   (b)Obtaining a passport for either of the children;

   (c)Allowing, permitting or authorising either of the children to travel outside the Commonwealth of Australia.

3. The mother shall give to the father not less than seven (7) days written or email notice of any non-urgent medical or allied health care appointment made for either of the children and is to include in the notice the time and location of the appointment and the name and professional details of the medical or allied health care provider.

4. The father is to be permitted to attend any appointment as notified to him pursuant to order 3 above.

5. 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 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.

6. All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 292 of 2012

MR BERRYMAN

Applicant

And

MS HEENAN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Berryman (hereinafter “the father”) and Ms Heenan (hereinafter “the mother”). 

2. The parties, with the undoubted help from their lawyers, resolved all outstanding parenting issues except for one.  They then, with the help of their lawyers, expeditiously and efficiently conducted a hearing about the discrete issue of parental responsibility.  Each parent gave brief oral evidence and was cross-examined. 

3. The Family Report became an exhibit.  The report writer was not required for cross-examination by either party.  No issue was taken with the contents of the report, its evaluation or the recommendations contained therein. 

4. The proceedings concluded at about 4.00pm yesterday, 17 February 2014.  This then is the Judgment which is delivered orally with respect to the remaining outstanding issue.  I have to decide what type of order for parental responsibility is to be made with respect to the parties’ two children, X, born (omitted) 2005 and Y, born (omitted) 2006. 

5. The father seeks an order for equal shared parental responsibility as it relates to each of the children.  The mother seeks an order that she have sole parental responsibility for the children. 

6. The effect of the orders made by consent on 17 February 2014 is that the children, X and Y, live with the mother and spend significant and substantial time with the father.  There are, in addition, orders for telephone communication, orders for restraining behaviours by the parents, orders for enabling communication with schools and medical professionals, an order requiring ongoing psychological assistance for the father and an order that would have the father obtain some private medical cover for the children.

Chronology

1. The following history is uncontentious: 

   (omitted) 1964              The father is born. 

   (omitted) 1965               The mother is born. 

   2000   The parties started living together. 

   May 2002The parties move from a suburb of Sydney to (omitted), a small village in central west New South Wales near (omitted). 

   (omitted) 2005                   The parties’ oldest child, X, is born. 

   (omitted) 2006      The parties’ youngest child Y, is born. 

   February 2012                        The parties separate. 

   1 June 2012 The father files an Initiating Application in the Bathurst Local Court.  That Application was subsequently transferred to the Federal Circuit Court. 

   18 July 2012      A final Apprehended Domestic Violence Order was made for a period of 12 months by consent without admissions.  In that Apprehended Domestic Violence Order, the mother was noted as the person in need of protection and the father was noted as the defendant. 

   13 January 2013                   The father painted words on a trailer, photos of that became Exhibit A.  The father then towed that trailer to changeover, where it was seen by the children and other persons.  He then towed the trailer through (omitted). 

   June 2013 The father had cause to telephone Family and Community Services, and after discussions with an officer on the telephone, a complaint is recorded as and against the mother. 

   23 January 2014 The father was convicted of contravening an Apprehended Domestic Violence Order. He was placed on a six month bond to be of good behaviour, pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act1999 (NSW),

The evidence relevant to the determination

1. There is no dispute the parents have a poor post-separation parenting relationship. 

2. The children, it is conceded, have had exposure to this poor parenting relationship post-separation. 

3. The mother lives in (omitted) in New South Wales. The father lives in (omitted) in New South Wales. 

4. The children live with the mother and spend time with the father. 

5. The children attend primary school in (omitted).  There is no high school in (omitted) and they will have to attend high school in (omitted).  There are two high schools in (omitted), a (religion omitted) high school and a state high school.  The mother says that she was raised as a (religion omitted).  Neither child follows, it seems, a particular religious domination. 

6. Both parents work.  The father is a (occupation omitted), involving some interstate travel.  The mother is a (occupation omitted). 

7. The father, by admission, did not deal well with the parties’ separation and went into, in his words, “a dark place.”  The father described to the Family Report writer the tension between himself and the mother as being extreme post-separation.  The father also told the Family Report writer that there was zero communication between himself and the mother.  The father said to the Family Report writer that the children were aware that he and the mother did not communicate. 

8. The father conceded he had taken the children to see a dentist without the mother’s knowledge then told her of the dentist’s opinion and then complained to the Department of Family and Community Services when she did not commit to act on the dentist’s opinion. 

9. The mother told the Family Report writer that she did not talk to the father at all, referring to their post-separation communication.  She told the Family Report writer that she felt frightened of the father.

10. X indicated to the Family Report writer words that caused the writer to conclude that X’s mother and father had a poor parenting relationship in X’s eyes and did not see each other.  X also described to the family report writer her parents being “Nasty” – that being her word – to each other. 

11. Neither parent led any evidence relating to serious medical issues for either X or Y. 

12. Since the release of the Family Report, the father has completed at least two post-separation parenting type courses and has remained engaged with his psychologist.  By the orders that were made yesterday, on 17 February 2014, the father consented to orders to continue engagement with his psychologist. 

13. It was apparent that the parents could sustain, they thought, some email communication regarding the children.  The mother was concerned that the father might not always be able to be child focused and non-denigrative in this form of communication.  It was the father’s view that he would be able to focus on the needs of the children in such communication.

14. It is impossible to determine whether there would be any change either way in respect of the parties’ ability to communicate with each other into the future.  If history foretells the future, then that history would indicate that the parties’ capacity to communicate into the future is virtually non-existent. 

15. The father’s actions post–separation in towing a trailer to changeover and through the mother’s village is an example of behaviour that fits the definition of family violence found in section 4 of the Family Law Act.

16. The father filed his Initiating Application, as I said, on 1 June 2012.  The definition of family violence at that time was:

    Family violence means conduct, whether actual or threatened, by a person towards a person or towards the property of the person’s family that causes that person or any other members of the person’s family reasonably to fear for or reasonably to be apprehensive about his or her personal wellbeing or safety. 

17. The father’s actions in towing the trailer reasonably caused the mother to feel apprehension about her wellbeing. 

18. Section 61DA of the Family Law Act requires me to apply a presumption that it is in the child’s – in this case X and Y’s – best interest that their parents have equal shared parental responsibility.

19. Section 61DA, subsection (2) provides:

    The presumption does not apply if there are reasonable grounds to believe a parent of the child has engaged in family violence.

    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:

    …

    (b) family violence.

20. Section 61DA, subsection (4) provides:

    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

21. Section 60CC requires the Court to consider a number of factors in determining what is in the children’s best interests.

22. I am satisfied for the reasons set out previously that the father’s behaviour with the trailer met the definition of the family violence, such that it enlivens the presumption for equal shared parental responsibility to be rebutted.  

23. It would not be in the children's best interests for there to be an order for equal shared parental responsibility, because of the parties’ inability to communicate with each other about the children, which means they have not participated in making decisions about major long term issues for the children.

24. The father acted unilaterally and without the mother’s knowledge in obtaining a dental assessment for the children.  The mother was then able to implement the professional opinion of the dentist.  Although it seems currently the parties may be able to agree on a dental treatment plan for the children into the future, I am not confident that that would be the case. 

25. There is no existent family violence order. 

26. The parents are, at least until the date of this hearing, unable to communicate with each other.  They have a tense and stressful relationship post-separation.  For them and the children, post-separation remains not pleasant, stressful and tense in the interactions between the parents.

27. The parents have been unsuccessful at all attempts at Family Dispute Resolution, until a joint Minute of Order was produced on Day 1 of the Final Hearing. 

28. Not all of the other subsections of section 60CC are relevant to the determination of this case, apart from those that have been dealt with already.

29. Equal shared parental responsibility is likely, because of poor parental communication and inability to resolve disputes, to lead to further litigation if such an order were made.  Further litigation is not likely to be a welcome prospect for the children, because the parents to date have not been able to shield the children from the extent of the parental dispute. 

30. These reasons also lead me to conclude that equal shared parental responsibility is not in the best interest of X and Y. 

31. As the children are to be living for more of the time each fortnight with their mother, she is to have an order for sole parental responsibility. 

32. The mother will, by concession, be restrained from engaging the children in any non-Christian religion. 

33. She will be prohibited from obtaining a passport for them or from permitting or allowing them to travel overseas, unless the father provides his written consent for the obtaining of the passport and the travel or there is a further order of the Court. 

34. The mother is also to provide notice by email to the father of all non-urgent medical or allied healthcare appointments attended by the children with not less than seven days’ notice being given prior to that appointment, so as to enable the father to attend that appointment if he wishes.

35. There is already in existence, as of yesterday, a requirement that any medical or allied healthcare professional, if either parent were not able to attend an appointment, to be able to discuss the results of that appointment with the other parent. 

1. For those reasons I make orders as set out at the commencement of this Judgment.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date: 25 March 2014