Bineau & Foley
[2023] FedCFamC2F 58
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bineau & Foley [2023] FedCFamC2F 58
File number(s): CSC 119 of 2021 Judgment of: JUDGE COPE Date of judgment: 31 January 2023 Catchwords: FAMILY LAW – parenting – two children aged six and four years – family violence post-separation – where father lives in City B and mother listed in City C – where father chosen to not spent time with children for 12 months – orders made for sole parental responsibility. Legislation: Family Law Act 1975 (Cth) Part VII ss 10G, 60B, 60CA, 60CC, 65AA Cases cited: Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
MRR v GR [2010] 240 CLR 461; [2010] HCA
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 31 August 2022 Place: City B Counsel for the Applicant: Mr Fellows of Counsel Solicitor for the Applicant: Raiti Lawyers Counsel for the Respondent: Mr Newman of Counsel Solicitor for the Respondent: MK Family Law Counsel for the Independent Children's Lawyer: Mr Williams of Counsel Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
CSC 119 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BINEAU
Applicant
AND: MR FOLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE COPE
DATE OF ORDER:
31 January 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother shall have sole parental responsibility for making decisions regarding the long term care, welfare and development of X born in 2016 and Y born in 2018 (“the children”).
2.The mother shall keep the father informed of any significant parenting issues affecting the children. For the purpose of these orders, a parenting issue is:-
(a)any major medical or health matter concerning the children;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children, including, but not limited to, the choice of school and curriculum and school other than with respect to routine or administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the children including the provision of whatever authority necessary to enable the parent to speak to any relevant persons; and
(f)where the children live.
3.The mother shall, prior to making the final decision about any such issue, do the following:-
(a)use her best endeavours to advise the father, in writing, of the proposed decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider, by reference to the best interest of the children, any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her final decision.
4.Each parent will keep the other informed of:-
(a)their residential and postal address and shall notify the other 48 hours prior to any change;
(b)their mobile telephone number and email addresses, within 48 hours of any change occurring;
(c)the names and addresses of treating medical or other health practitioners who treat the children; and
(d)as soon as reasonably practicable of any serious medical condition or significant health issue or significant injury suffered by the children.
Live with
5.The children live with the mother.
Spend Time with
6.Conditional upon the father first completing the Stopping Family Violence Program, Parenting Orders Program and engaging with a psychologist in accordance with order 13-17 herein, the children will then spend time with the father as follows: -
(a)For a period of no less than three (3) months: -
(i)For not more than twice per month, for not more than three (3) days at a time, upon the following basis: -
A.If time occurs on a weekday: If it is a non-school day during the week, then from 9.00 am until 5.00 pm; or If it is a school day, then from the conclusion of school until 7:00 pm or
B.If time occurs on a weekend, then from 9.00 am until 5.00pm Saturday and/or from 9.00 am until 5.00 pm Sunday;
(ii)The father is to give the mother no less than twenty-one (21) days written notice of the dates he is proposing to spend with the children;
(iii)The time shall occur in the City C area;
(b)Thereafter, provided the father has spent time with the children at least once per month during the previous three (3) month period, the father’s time with the children will increase as follows: -
(i)For not more than twice per month, for not more than one (1) overnight period at a time, upon the following basis: -
A.If time occurs on a weekday: If it is a non-school day during the week, then from 9.00 am until 5.00 pm; or if it is a school day, then from the conclusion of school until 7.00 pm or
B.If time occurs on a weekend, then from 9.00 am on the first day until 5.00 pm the following day;
(ii)That time shall occur in City D for every third visit (provided the dates proposed by the father fall on a weekend) but otherwise, the father’s time with the children shall occur in City C and if the time is to occur in City D, then time will commence at approximately 7.00 pm on Friday;
(iii)The father is to give the mother: -
A.No less than twenty-eight (28) days written notice of the dates he is proposing to spend with the children if the time is to occur in City D; or
B.No less than twenty-one (21) days written notice of the dates he is proposing to spend with the children if the time is to occur in City C.
(c)Thereafter, provided the father has spent time with the children at least once per month during the previous three (3) month period, the father’s time shall increase as follows: -
(i)For one (1) weekend per month from the conclusion of school Friday until 5.00 pm Sunday;
(ii)That time shall occur in City D for every third visit (provided the dates proposed by the father fall on a weekend) but otherwise, the father’s time shall occur in City C and if the time is to occur in City D, then time will commence at approximately 7.00 pm on Friday;
(iii)The father is to give the mother: -
A.No less than twenty-eight (28) days written notice of the dates he is proposing to spend with the children if the time is to occur in City D; or
B.No less than twenty-one (21) days written notice of the dates he is proposing to spend with the children if the time is to occur in City C.
7.The father is to ensure that the children attend school and any extracurricular activities they are involved in during his time with the children when he is spending time with the children in City C.
School holidays
8.Upon time commencing in accordance with order 6 (c) herein, the children will spend time with the father during the gazetted school holiday periods, as agreed between the parties but failing agreement: -
(a)For the March/April, June/July and September/October school holidays, the children spend time with the father for the: -
(i)First week of the holidays;
(ii)With time to commence no earlier than 5.00 pm on the first Saturday of the school holiday period and with time to conclude no later than 5.00 pm on the following Saturday.
(b)For up to fourteen (14) consecutive days during the December/January school holiday period: -
(i)The time will commence on a Saturday and conclude no later than a Saturday two (2) weeks later;
(ii)The father shall only be permitted to spend time with the children during the two (2) week period over the Christmas Eve, Christmas Day, Boxing Day and New Years Day period in all odd numbered years if he has notified the mother in writing by 1 December and in the event he has not nominated that he wants to spend time with the children during this time, the father’s time will be forfeited and the mother can make her own arrangements with the children;
(iii)In all even numbered years the mother will advise the father in writing of the two (2) week period (including Christmas Eve, Christmas Day, Boxing Day and New Year’s day) when the children will be with her and the father shall not be permitted to spend time with them over this period.
(c)That for school holiday periods: -
(i)The father will collect the children from the mother at the commencement of the father’s time, from City C unless the parties agree in writing to an alternate location; and
(ii)The mother will collect the children from the father at the conclusion of the father’s time, from City B unless the parties agree in writing to an alternate location.
(d)That in the event the father organises for the children to fly between City C and City B for the school holiday periods, the father shall: -
(i)give the mother a copy of the children’s return flight itineraries no less than four (4) weeks prior to the flight;
(ii)ensure that he accompanies the children (if required); and;
(iii)be solely responsible for the costs of the children’s flights.
(e)The father shall give the mother no less than sixty (60) days’ notice that he intends to spend time with the children during the relevant upcoming school holiday period, and he shall specify when the time shall start and end.
(f)The father is to have approved annual leave for all holiday periods he wants to spend time with the children and he shall provide evidence of this leave to the mother when confirming the dates he wishes to spend with the children during the school holidays.
Changeover
9.That unless otherwise agreed between the parties, in writing, changeover shall occur: -
(a)If the father is spending time with the children in City C: -
(i)If it is a kindy/school day, then at the conclusion of kindy/school; or
(ii)If it is a non-school day, then at the McDonalds Restaurant at Suburb E.
(b)If the father is spending time with the children in City D, then at the McDonalds Restaurant at Suburb F;
(c)If the father is spending time with the children in City B, then at the McDonalds Restaurant on the G Highway, City B;
(d)If the father is spending time with the children in any other location, then at another public location nominated by the mother in writing, provided it is within a twenty-five (25) kilometre radius of where the children are spending time with the father.
10.If the father needs to deliver the children back to the mother earlier than the time agreed by the parties or stipulated within these orders, then he is to text message the mother to notify her of a proposed earlier handover time, with the changeover location to remain the same as is provided for in order 9 unless agreed between the parties in writing.
11.The father is specifically prohibited from attending the mother’s residence at any time, unless with the mother’s prior written agreement.
Video/Telephone communication
12.The father shall communicate with the children at all times as agreed in writing with the mother, but failing agreement, as follows: -
(a)Skype video calls between 5.45 pm and 6.15 pm on the first day of the father’s four (4) rostered days off;
(b)The mother shall initiate the call to the father;
(c)That should the children become upset or distressed, or should the father speak inappropriately to or in the presence of the children, then the mother is permitted to end the video call; and
(d)If the children are not able to speak with the father for some reason, then the mother will notify the father in writing and the mother will ensure that the children speak with the father within the next twenty-four (24) hour period.
Counselling
13.The father shall do all such things to attend upon a psychologist of his choosing, by way of referral from his treating General Practitioner, to obtain counselling (including counselling in respect of his past behaviours and understanding how they affect the children and the children’s relationships with him and with the mother) to fully support him having a positive relationship with the children and establish a positive co-parenting relationship with the mother.
14.The father is granted leave and is directed to provide his psychologist with a copy of: -
(a)These orders;
(b)The family report of Ms H filed 22 September 2021;
(c)The mother’s trial affidavit filed 2 August 2022;
(d)Exhibits M1 – M5; and
(e)Reasons for Judgment.
15.The father shall continue to be involved in this counselling at the direction of his treating psychologist, including any prescribed medication.
16.The father shall continue to comply with, and participate in, any treatment plans prescribed by his GP and/or psychologist.
17.That no less than six (6) months from the date of these orders, the father shall provide to the mother a letter from his psychologist which sets out:
(a)confirmation that the father has provided to the psychologist the documents listed in these orders by the father;
(b)dates of the father’s attendances;
(c)their professional assessment as to how the father has managed his mental health and what strategies are in place for the father to continue to do so; and
(d)their professional assessment of the father’s capacity and ability to commence overnight time with the children.
Exchange of information
18.That unless otherwise agreed in writing between the parties, the mother and father shall communicate via the Talking Parents App, unless in the event of an emergency in which case, the parties shall communicate via text message and/or telephone call.
19.That in the event that the father’s roster alters, he is to provide the mother with a copy of his new roster via the Talking Parents App within seven (7) days of him being provided with a new roster.
Prohibitions
20.The father is specifically prohibited from attending at, or collecting the children from, any school or outside school hours care facility attended by the children without the prior written consent of the mother or otherwise in accordance with these orders.
21.The father is specifically prohibited from attending at the mother’s residence at any time, unless he has the mother’s prior written consent.
22.The mother and father shall: -
(a)not discuss these proceedings and use their best endeavours to prevent other persons discussing these proceedings or the allegations made by either parent against the other to or in the presence of the children;
(b)not denigrate and use their best endeavours to not have other persons denigrate the other parent and the other person’s family (including their respective partners/spouses) to or in the presence or the children;
(c)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(d)speak respectfully of the other parent and use their best endeavours to encourage others to speak respectfully of the other parent.
Authorities
23.The parents authorise and direct by this order: -
(a)Medical or other health practitioners to provide both parents with information that they are lawfully able to provide about the children (at the requesting parent’s expense); and
(b)School attended by the children to provide all information to both parents about the children’s educational progress or other school related activities and either parent may seek school photographs, reports and certificates (at the requesting parent’s expense).
Dispute Resolution
24.In the event that there is a dispute about the children or about the interpretation of these orders, the parents before making any further application to a court ( except in cases of contravention or enforcement of these orders), shall:
(a)either attend counselling or meditation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
Other Orders
25.The Independent Children’s Lawyer be discharged 30 days from the date of this order.
26.That all outstanding applications be dismissed and the matter be removed from the pending cases list.
AND THE COURT NOTES THAT:
A.The parties had reached an in principle agreement as to all matters save for parental responsibility and the notice period required for the father to spend holiday time with the children.
B.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bineau & Foley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART 1: INTRODUCTION
The proceedings before the Court are in relation to the parenting arrangements for the children X born in 2016 who at the time of trial had just turned 6 years and Y born in 2018 who had just turned 4 years of age (“the children” or “the boys”).
The parties to the proceedings are the Applicant, Ms Bineau (“the mother”) and the Respondent, Mr Foley (“the father”).
The parties commenced a relationship in 2008 and began living together on the Region J at the end of 2010. The parties moved to City C in mid-2011. The parties separated on a final basis on 21 August 2019.
Since separation, the children have lived with the mother in City C. The father however moved to City B on 5 June 2020.
The mother works as a fulltime professional in City C. The father is a transport worker working in City B. While the mother has re-partnered this is a long distance relationship. The father has not re-partnered.
Proceedings were commenced by the mother on 11 February 2021.
Current Living Arrangements
The children have remained living in City C with the mother. In accordance with Interim Consent Orders made on 12 October 2021, the children are to spend time with the father twice per month in City C for up to three days at a time during the day only.
At the time of trial, the father had not spent time with the children or had FaceTime or phone contact with the children since those orders were made. The mother’s evidence is that she has attempted to facilitate that time but the father has refused. This is conceded by the father.
Competing Proposals
Prior to the trial each party filed Outline of Case documents as to their respective positions. During closing submissions however the father handed up proposed orders with one or two amendments. Those orders were largely agreed to by all parties with the outstanding issue as follows:
(a)Equal shared parental responsibility is sought by the father while the mother and the Independent Children’s Lawyer (“ICL”) propose orders for sole parental responsibility with extensive consultation clauses; and
(b)Whether the father should provide the mother with 60 days’ notice of his intention to spend holiday time with the boys or such lesser period as the court deems appropriate.
The parties have otherwise agreed upon detailed orders that provide for the children to live with the mother and that prior to commencing time with them, the father needs to do the work that he agreed to do and was ordered to do on 12 October 2021.
The proposed orders that are accepted by the parties also address school holiday arrangements, changeover arrangements, video/telephone communication, counselling, the exchange of information, prohibitions and authorities.
Risk Factors
In the Notice of Child Abuse, Family Violence or Risk filed on 1 August 2022, the mother identifies the following risk factors:
(a)The father’s mental health;
(b)Risk of child abuse; and
(c)Family violence.
In the Notice of Child Abuse, Family Violence or Risk filed on 14 June 2021, the father does not identify any risk factors.
The family report writer addresses the risk factors of family violence and the father’s mental health in the family report.
It is unchallenged that the father had a diagnosis of depression in 2018. The subpoenaed material reflects that on 13 May 2021 the father sought medical support with “feelings of hopelessness” and he gave evidence in the witness box of ongoing heightened emotion and hurt relating to the relationship breakdown and property settlement, noting that it is now three years post separation.
The mother obtained a temporary Protection Order on 13 January 2022 and a Final Protection Order was made in the father’s absence on 28 April 2022. On the mother’s evidence, and this is conceded by the father, he has breached that order on more than one occasion by sending and posting abusive communications to and about the mother.
PART 2: THE EVIDENCE
The mother’s Outline of Case filed on 23 August 2022 sets out the material on which she relies with the addition of the orders of 12 October 2021.
The father’s Outline of Case filed on 24 August 2022 sets out the material on which he relies.
The Independent Children’s Lawyer’s Outline of Case was filed on 25 August 2022 and he relies on the expert evidence of the family report writer Ms H.
The following documents were tendered during the trial and marked as Exhibits:
(a)M1 – Email from Robert Raiti to Ms Bineau dated 26/08/2021;
(b)M2 - Hoodie Jumper;
(c)M3 - Newspaper Article dated 12/01/2022;
(d)M4 – Text messages between the parties 24/08/2022;
(e)M5 – Facebook post by the respondent;
(f)M6 – Tender Bundle of ICL Page 15;
(g)M7 – Tender Bundle 25 and 26 pages;
(h)F1 - Draft proposed orders by father;
(i)M8 – Draft minutes of orders sought by the applicant mother; and
(j)ICL1 - Orders sought by the ICL.
The Witnesses
The Mother
The mother was a sensible and child focused witness.
The Talking Parents record reflects, and it is unchallenged evidence, that the mother has kept the father advised, sent him many photos and attempted to encourage and facilitate the father spending time with the boys.
The only issue I had with the mother’s evidence is that she explains to the boys their father’s failure to see them as his “choice” which may imply a rejection of them by their father. This was however balanced by her evidence that she did so on professional advice and also that there were photos of the father in the boys’ bedrooms and that she told them each night at bedtime that she loved them, that their father loved them and they were lucky to have two parents who love them so much.
The mother was an impressive and child focused witness. I accept the submission by her counsel that the father is lucky indeed that the mother of the children has risen above his ongoing abusive behaviour and remains child focused.
I had no reason to doubt and I accept her evidence as to what she does to support and encourage the father’s relationship with the children. I note that under cross examination the father also accepted that she supports the relationship.
The Father
The father was a troubling witness. I have no doubt that he loves his sons but he has many challenges. He conceded the sending of the abusive messages to the mother and posts on social media including as recent as 24 and 25 August 2022.
He made concessions where he was able to do so, such as his failure to comply with the orders of 12 October 2021 and in particular the failure to get counselling and do the courses that will assist him to better manage his emotions and to be an available parent to these boys.
The father also conceded the following matters:
(a)He had often denigrated the mother in his messages and social media posts;
(b)When he had done so he was not under the influence of alcohol and knew what he was doing;
(c)He had rarely thanked her for the many photos and the information she sent him about the boys and that his responses were more often abuse of her, her partner and her family;
(d)He was alienated from his own family because they had stayed in the mother’s home and allowed her and the boys to stay in their homes. He was unable to give any reasons other than “it just is” a problem for him;
(e)He was not capable of addressing the past and getting on with his life;
(f)Whilst he did not see himself as a victim he felt that it had been a “one way street”;
(g)If he had done the courses and counselling as ordered almost a year ago that things may be very different now, that this trial may need not have happened;
(h)He knew he had to do the courses and counselling but had not done so, other than attending counselling twice which he stopped because he did not feel he was getting anything out of it;
(i)He is aware that if he travelled to City C to see the boys for three months then he would be able to undertake some changeovers in City D, a half way point;
(j)His concession, though only when pressed in cross examination, that he could understand why the mother may have been concerned by the jumper he sent the boys, noting they had a picture of a person who committed suicide and were sent without any wrapping paper, card or explanation;
(k)His concession that there was a financial component to his resentment of the mother;
(l)His concession that sports, which he described as therapy and from which he gets a lot of enjoyment, was not going to fix things;
(m)He would need to carefully navigate what he said to the boys, and that he would not want to say things to upset them; and
(n)His feelings of hurt and resentment impair his ability to communicate with the mother.
However in many cases he was unable to make concessions or see the illogicality of his own conduct. I formed the view that he was still ruled by his hurt and disappointment about the relationship breakdown and property settlement and was therefore lacking insight. I formed those views based on the following evidence:
(a)The fact that he has not seen his boys for over 12 months despite the court orders and encouragement for him to do so;
(b)The abusive messages he continues to send to the mother where he calls her a “gold digger” and a “cunt” (the latter may be obscured by symbols but is still clear) despite the fact that they separated over three years ago and despite the fact that the mother has been inclusive and courteous in her messages to him;
(c)The fact that a Protection Order was made in 2022 naming the father as the respondent and the mother as the aggrieved as a consequence of those communications and social media posts;
(d)His emotive evidence around the mother, including that he spent 12 years of his life with someone he would have “taken a bullet for”, that he sent the abusive messages because of “the amount of hurt I carry every day”, that his life would be “easier” if he never saw her again, that the abusive messages are “just how it feels”, that he feels he has been “replaced”, that he “can’t put into words how hurt I am” and that he has a “lot of resentment because of the position I’m in”;
(e)The fact that he has not complied with court orders for counselling and courses, and yet still gave evidence that he respected court orders and would comply in future;
(f)He had denigrated and abused the mother in breach of the Protection Order;
(g)His evidence that the hopelessness he felt in 2021 was because he felt that everything he had contributed “on a personal and financial level from the point of break up was all a one way street”;
(h)The illogical nature of his evidence that he was in a much better place now despite his ongoing abusive communications to and about the mother;
(i)He could not see his decision to relocate away from City C, where he had friends and a well-paying job and more importantly his very young sons who need their father, as a bad choice;
(j)His evidence that he could not afford to travel to City C for contact despite a taxable income of $90,000;
(k)His evidence that he is still driving a Motor Vehicle 1 which he acknowledged he could sell for at least $40,000, buy a cheaper car and use the funds for travel to see his boys;
(l)His evidence that he “doesn’t enjoy” time in City C, despite the fact that is where his two young boys live;
(m)His evidence that he feels it is a one way street, that he has been “railroaded” that he does not feel he has had “a say, any choice or any consideration”, that he “just wanted a two way street”;
(n)His attempts to give evidence about his contributions and commitment to a mutual relationship when they were together;
(o)His evidence that the jumpers he sent to the boys were “plain and simple” jumpers despite the message “In memory of …” and the picture of a person who committed suicide; and
(p)Even when pressed, and he conceded that suicidality has been a concern in this matter, he would not say he wouldn’t send a present with a similar message, just that he would “take that into consideration”.
The Family Report Writer – Ms H
Family Report
The family report writer undertook interviews in July/August 2021 and prepared the family report in September 2021. At that time she was impressed with both parents’ capacity to parent[1]. She was however concerned about the father’s struggle to accept the finality of the relationship and recommended that he undertake a post separation parenting course and counselling. She did not specifically recommend that as a prerequisite to time spending arrangements.
[1] Family Report filed 22 September 2021, paragraph 73-74
In the family report, she also recommended:
(a)Equal shared parental responsibility as the parents are in her view “philosophically similar”;
(b)The children continue to live with the mother and spend time with the father;
(c)The father’s time be aligned with his rostered days off and occur in City D every three months and in City C with regularity to be dictated by affordability. She strongly recommended the time in City C include some week day time; and
(d)Her recommendation did not go beyond that point but she proposed a review in 2024 when Y is in prep.
Cross Examination
The family report writer confirmed that she had concerns about suicidality of the father at the time of the report interviews. The flat affect that we saw in the witness box at trial was similar to what she had seen at interview over a year ago.
She expressed that the father had really impressed her with his practical parenting ability, that he was in the top two of the fathers she had seen in his management of two young children’s needs. She was not however impressed with his inability to shift from being a partner to a co-parent – to move to a business like relationship.
She expressed the opinion that he may need to see a GP for medication to “lift the fog” before he could usefully engage in therapy.
She supported provision of her report to the father’s counsellor and a report to be provided to the mother about his level of engagement.
She did not support supervision for the father. Her view was that his parenting ability was of such a capacity that this would not be necessary.
As regards the ongoing abusive messages, she expressed that it was about his lack of insight and that certain dates of the year are worse for those suffering depression.
She spoke positively of the mother; that she had never been a gate keeper and that she said that the boys deserve a relationship with their father. Her evidence was that it is the father’s response to her efforts that is inappropriate.
Ms H’s evidence of her observations of the father with the boys was of a close and loving relationship. Even though they had not had much time with their father, she said they were all over him like a rash, that they were comfortable with him and happy just to be together.
Her evidence was that these boys have two good parents.
She gave evidence that the father was proud of his job and that he does well at work, but the collapse of the relationship with the mother and the attendant grief and loss were the issue.
The father’s sports and friendship group are not enough. Her evidence was to the effect that he had those last year when she interviewed him; that the depression is sitting there and needs to be treated.
When questioned about parental responsibility, she spoke of the conflict that necessarily arises when the mother make a proposal and the father responds with inappropriate words. Her evidence was that she had “total faith” that the mother would include the father in any decision making if he addressed his issues. Her opinion was that the mother had the boys’ best interests at heart and would consult if she had sole parental responsibility. She was now of the view that equal shared parental responsibility would not be in the best interests of the children, as it would not be in the mother’s best interest.
It was suggested to Ms H that an order for equal shared parental responsibility would assist to address the father’s feelings of inequality. Ms H did not agree, expressing that the father’s feelings were more about finance and further that if he could not communicate constructively then it was pointless.
I found Ms H a persuasive witness and accept her opinions.
Discussion and Findings
I have no doubt that the mother is a child focused and loving parent. I accept her evidence, as does the father himself, that she speaks positively of the father to the children and has kept him informed.
I accept her evidence that “the door is still open”, that if the father makes the effort to address his inability to co-parent positively that he will again spend regular time with the children.
I find that the only reason the father is not spending time with the children is due to his choices. He chose to move away from City C; he chooses to drive a Motor Vehicle 1 rather than to downsize and spend the money on travel to re-establish his relationship with the children; he has chosen not to engage in courses and counselling to address his sorrow and bitterness at the end of the relationship.
Based on his presentation in the witness box and his evidence as outlined above, the father is a very unhappy man, but he has taken no steps to address that. I agree with Ms H, and indeed the father himself agrees, that sports will not fix his issues.
The father has chosen to prioritise his hurt feelings over a relationship with the boys who desperately need their father in their lives. This is all fixable – but it must be fixed by him.
The father gave evidence that he is over the mother. Quite clearly he is not. When he is still some three years post separation sending her abusive messages then he is most definitely not over the relationship.
Having heard the father’s evidence I have no confidence that he would be able to contain himself at this point in time. I am of the view that he has no insight.
The father needs to wake up. It is three years post separation and his unhappiness and possible depression is clearly not going to fix itself. He needs help to do that or he will miss out on these boys and more importantly the boys will miss out on their father.
PART 3: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
When making parenting orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations, being the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG). No greater weight is placed on any particular additional consideration.
In MRR v GR [2010] 240 CLR 461 on 3 March 2010, the High Court stated that s 65DAA(1)(a) and (b) and s 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
PART 4: APPLICATION OF THE LAW TO THIS MATTER
I now turn to consider the application of the law to the particular circumstances of this case based upon the evidence and the findings that I have made, the reasons I have outlined for those findings and how they determine which parenting orders are in the best interests of the children.
S 60CC(2) THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents;
It is not in dispute that the boys have a close and loving relationship with both parents. Despite the irregular nature of their time with the father, the family report writer witnessed a positive relationship with the father.
The boys have however not seen or spoken to their father for over a year. The father needs to act now or that relationship will be lost. It is a credit to the mother that the relationship is still positive.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The risk that the children face in this matter is the risk of exposure to the father’s depression and his bitterness about their mother. There is a Protection Order in place made in 2021 based in a large part on the father’s ongoing abusive communications to and about the mother.
It is three years post separation and the father cannot contain his hurt and bitterness about the relationship breakdown and the financial consequences for him.
His evidence is that he would do nothing to hurt the children but he has also demonstrated a troubling lack of insight as detailed above in his evidence and in his failure to address his own mental health needs. He does not seem to realise that not seeing his boys is likely causing them emotional harm.
This is a significant risk factor as it could cause significant emotional harm to the boys if exposed to their father’s denigration of the mother and his distress.
S 60CC(3) THE ADDITIONAL CONSIDERATIONS ARE:
S 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are six and four years of age. I have no direct evidence of their wishes and if I did I would place little weight upon it.
S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons (including grandparents or other relative of the child)
There is evidence from the family report writer of a close and loving relationship with both parents. I accept that evidence and that is supported by the evidence of the mother as to the boys and her efforts to maintain their relationship with the father.
S 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major, long term issues in relation to the child; and to spend time with the child; and to communicate with the child.
The father has not seen the boys at all or communicated with them in well over a year.
I accept the mother’s evidence that she has encouraged the father to see the boys and kept “the door open”.
I accept the father’s evidence that he knows what he has to do to see the boys but that he has failed to do that.
S 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother agreed that she receives child support as assessed. On the father’s evidence this is in the sum of about $530 per fortnight.
It is unchallenged evidence that the mother is otherwise solely responsible for all costs relating to the boys.
S 60CC(3)(d) The likely effect of any changes in the child’s circumstances
The mother is and will continue as the unchallenged primary care giver. The issue before the court is when and how the boys will spend time with their father.
S 60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent
This is a significant factor as the mother lives with the boys in City C and the father lives in City B. The father relocated away from City C where the parties had lived for many years. He has thus created the difficulty.
Nonetheless the mother proposes that after a reintroduction period the parties will meet for handovers at the halfway point in City D.
Both parties work and both parties receive a good income. The parties’ respective Financial Statements show the mother’s gross income at $1,977.13 (including child support) and the father’s at $1,740 per week. Both parties give evidence of expenses that outstrip their income.
The father conceded in cross examination that his car could be sold for between $40,000 and $60,000. I accept the submission that he could sell his car and buy a cheaper car, and thus have excess funds to finance travel.
S 60CC(3)(f) The capacity of each of the child’s parents; and 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.
The father does not question the mother’s parenting capacity.
The family report writer gave evidence and I accept that the father is an excellent hands on parent. What is in issue is his ability to meet the boys’ emotional needs when he is failing to attend to his own.
S 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
These are young boys. I am of the view that they would benefit from regular contact with their father, if he can only treat his depression and regain his equilibrium.
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have nothing further to add.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and s 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
I have addressed this earlier in my reasons.
S 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is three years since these parties separated and the evidence before the court is that the father has made no progress in addressing his feelings about the mother, despite his own commitment to do so through consenting to interlocutory parenting orders which required him to undertake courses and counselling.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.
I have nothing to add.
PART 5: DETERMINATION
Parental Responsibility
The mother proposes that she have orders for sole parental responsibility whilst the father seeks orders for equal shared parental responsibility.
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. The presumption does not apply in this matter for the following reasons:
(a)the violence perpetrated in 2020 when the father punched the wall near the mother’s head whilst she was holding one child and the other was standing nearby;
(b)the abusive communications he has sent to and posted about the mother as recently as the week leading up to the trial, noting that he has conceded those matters; and
(c)the Protection Order made in 2022 in the mother’s favour.
The mother’s proposal is based in a large part on those abusive communications that she receives from the father and his complete inability to communicate positively or appropriately with her despite her best efforts.
Having decided that the presumption does not apply, I must nonetheless consider if it may be in the children’s best interests.
The mother gave evidence that prior to separation she and the father had been able to agree a number of matters such as school, moving to City C and the boys’ names. I am not reassured by that as it is the conduct post separation that will inform their ability to co-parent into the future.
I am of the view that it would not be in the boys’ best interests for there to be an order for equal shared parental responsibility for the following reasons:
(a)The recent nature of the father’s abusive conduct and his failure to either see that this is counterproductive and to stop or moderate his communications;
(b)The father’s abusive response to the mother’s efforts to share information. I have a real concern based on this long standing behaviour that the mother’s future efforts to co-parent would be met with the same response;
(c)I am not of the view that I should make an order for equal shared parental responsibility as an acknowledgement of the father’s feelings of inequality. It is certainly not a factor in the legislation that I should consider what orders will make the father feel better;
(d)The findings I have made about the father’s lack of insight; and
(e)The father’s admitted failure to comply with court orders.
The mother gave evidence that a recent issue had arisen when the father emailed her about giving X an “experimental vaccine” after he became aware that X had been vaccinated against Covid. Whilst this is not decisive, it is another indication that the father will work against rather than with the mother.
The mother agreed that once the father had completed various courses and counselling she supported time for the children with their father and was content for it to move away from City C once established. Her evidence is that she is prepared to drive to City D for handovers to facilitate holiday time once that stage was reached.
Based on her evidence and presentation in the witness box, I am satisfied and agree with the family report writer that the mother can be trusted to continue to encourage and facilitate the boys’ relationship with their father and to keep the father involved in their lives and decision-making. The detailed orders she seeks for sole parental responsibility impose an obligation upon herself to consult with the father and are confirmation of her commitment to include the father.
I therefore propose to make orders for sole parental responsibility in terms of the mother’s Amended Initiating Application filed on 1 August 2022.
Equal Time or Substantial and Significant Time
Given the findings I have made and the order for sole parental responsibility, I am not required to consider equal time or substantial and significant time. Given the distance between their homes, which is at the least an eight hour drive neither option is reasonably practicable in any event.
The parties have agreed that the boys will continue to live primarily with their mother. I find that those orders are in the boys’ best interests for all the same reasons that I found the father was lacking in insight and that equal shared parental responsibility was unworkable.
The orders proposed by the father and supported by the mother and the ICL, after some minor agreed changes, provide for the father to spend time with the children conditional upon him first completing the stopping family violence program, the Parenting Orders Program and engaging with a psychologist. These are similar to the orders made on 12 October 2021.
In the Amended Initiating Application filed on 1 August 2022, the mother proposes the father also complete the Focus on Kids program. It is my understanding that this program forms part of the Parenting Orders Program and therefore I do not propose to make a separate order in relation to same.
The mother proposes an order that the father provide an electronic copy of the certificates of completion to her within 14 days of receiving same. This is not opposed by the father or the Independent Children’s Lawyer. I am satisfied given the father’s presentation under cross-examination and his failure to comply with orders in the past that it is important for the mother to have this reassurance prior to the commencement of time between the children and their father. I will therefore make the order as proposed by the mother at order 30 of her Amended Initiating Application.
Once he has completed those courses and undertaken counselling, the father will spend time with the children over a three month period in the City C area. This will necessitate the father travelling long distances for the purposes of relatively short periods of time, however it is more appropriate that he do so. This is because he relocated away and also because of the young age of the boys. In addition it is noted that this is the father’s own proposal.
After that contact over a three month period, the father will spend further time with the children over another three month period for increased time and that will occur in City D each third visit, provided the dates fall on the weekend.
Thereafter the father’s time is to increase to a full weekend, with time again to occur in City D for each third visit.
There are also proposed provisions requiring the father to give notice to the mother of dates sought for contact. The orders require the father to ensure the children attend school and extra-curricular activities when spending time in City C.
I am satisfied that those orders reflect a sensible age and stage appropriate progression of time. I take on board the opinion of the family report writer that the father does not need supervision and that she has observed a positive and loving relationship.
I am satisfied that the father’s proposal of a build-up of time during school terms, as supported by the mother and the ICL, is in the best interests of the children and reasonably practicable in all the circumstances.
The father will need to make a significant effort and find the money for petrol and accommodation, particularly in the first three months, to get it up and running. I am satisfied that once the father addresses the issues of concern and actually starts parenting his children again, as the children get older the mother will support and facilitate the relationship.
I therefore propose to make orders in terms as proposed by the father and supported by the mother and the Independent Children’s Lawyer.
School holidays
The parties agree that once the father’s time has increased to alternate weekends he will thereafter spend time with the children for a week during the midyear school holidays and for a 14 day block during the Christmas holidays.
By the time this occurs it is likely to be a year down the track at least. X will be at least seven years of age and Y will be five. I am satisfied, given the evidence of their positive relationship with the father and his practical abilities, that the proposal of the father as supported by the mother and the ICL is in the best interests of these children.
The issue remains as whether the father should provide to the mother 60 days’ notice of holiday time, as proposed by the mother, or some lesser period as proposed by the father, suggested to be 21 or 28 days.
I have decided that the longer period as sought by the mother is appropriate for the following reasons:
(a)Despite court orders made on 12 October 2022, the father has had no time or communication with the children for over a year;
(b)If the father fails to follow through with these orders it will be necessary for the mother, who works, to make arrangements for vacation care or the like. This requires notice or often loss of opportunity; and
(c)The father works set hours, four days on and four days off. It is a relatively straightforward matter for him to plan ahead.
I therefore propose to make the order sought by the mother that the father provide her with 60 days’ notice of his intention to spend holiday time with the children.
The mother also seeks orders that the father is to have approved annual leave for all holiday periods with the children and to provide evidence of same to the mother.
Given the young ages of these boys, and the fact that they have had no contact with their father for over a year and there is to be a build-up of time with him, I am satisfied that it would be in their best interest that the father not work whilst he has them in his care.
I am satisfied that when the boys are older and perhaps the father has re-partnered, or has family support, then the mother will be flexible about this order but for now I am satisfied that it is necessary and I propose to make the order
Changeover
The parties have agreed on the location of change overs in City C, City D, and City B and in any other location to be nominated by the mother in writing.
These are sensible noncontroversial orders which are agreed to by all the parties and I will make orders in those terms.
Video/telephone communication
The parties have agreed a time for video calls to occur on the first day of the father’s rostered days off, how those calls will be initiated and how they will be managed.
These were proposed by the father and agreed to by the mother and the Independent Children’s Lawyer. They are not controversial and again I support those orders as being in the best interests of these children.
Counselling
The father proposes orders that he attend upon a psychologist and has agreed that this be way of referral from a GP. He has also proposed that he provide to that psychologist these court orders, the family report, the mother’s affidavit, the exhibits and these reasons for decision.
He also proposes that he continue to attend as directed by his therapist, that he will comply with treatment plans including prescribed medication and that he shall provide to the mother a letter from his psychologist setting out some basic information. These proposed orders are agreed to by the mother and the ICL.
The ICL sought that where the father proposed to comply with treatment plans that include for any prescribed medication. This was agreed to by the father.
Ms H expressed the opinion that the father needed medication to “clear the fog” and allow therapy to be effective. I accept that may well be the case given the time that has passed since separation and the father’s clear distress in the witness box. It was the mother’s evidence that the father had in the past been non-compliant with medication. This was disputed by the father but I am of the view that it is important that if he is prescribed medication in the future that he do comply for the sake of the children.
I am satisfied that it is in the best interest of these children that the mother be informed by the psychologist of the father’s engagement and commitment so that she can be sure that when the father commences time with the children that he is in control of his emotions and any risk of emotional harm to them is minimised.
I will therefore make orders as proposed by the father and agreed to by the mother and ICL, with that addition as to prescribed medication.
Exchange of information
I am content that the orders proposed by the father and agreed to by the mother and the ICL for the parties to communicate via the Talking Parents app and that the father will notify the mother if his roster changes are in the best interest of the children. I will make orders in those terms.
Prohibitions
The father proposes orders restraining him from attending at or collecting the children from school or after school care facilities without the mother’s written consent. He also proposes he be prohibited from attending at the mother’s residence and a standard non-denigration clauses.
Those orders are supported by the mother and the ICL. The father has in the past collected the children from daycare without notification to the mother and he has in the past attended at the mother’s home without prior arrangement.
Whilst that is historical, given that there is a Protection Order currently in place for more recent inappropriate conduct, I am of the view that the orders proposed by the father and supported by the mother and the ICL are in the best interest of the children and I therefore propose to make those orders.
Authorities
The authorities proposed by the father are non-controversial standard authorities. They supported by the ICL and the mother.
I am satisfied that is in the best interest of the children that the father be able to obtain information about them from schools and health services and I will therefore make orders in those terms.
Dispute resolution
The mother proposes an order for the parties to attend at dispute resolution should a dispute arise about the children or the interpretation of any court orders.
This is supported by the father and the ICL. It is a sensible and non-controversial order which simply reflects the legislation. I propose to make the order in terms of the mother’s Amended Initiating Application.
CONCLUSION
Based on the findings and reasons set out above I am satisfied that the orders I now make are in the best interests of the children.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 31 January 2023
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