BOND & MILLS

[2015] FCCA 2672

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOND & MILLS [2015] FCCA 2672

Catchwords:
FAMILY LAW – Parenting – with which parent a seven year old will primarily live – family violence – parental responsibility.

Legislation:

Family Law Act 1975

Applicant: MR BOND

Respondent: MS MILLS

File Number: MLC 5649 of 2014

Judgment of: Judge McGuire

Hearing date: 29 September 2015

Date of Last Submission: 29 September 2015

Delivered at: Melbourne

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicant: Mr N Kanarev

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the Respondent: Ms J Williams

Solicitors for the Respondent: Pearsons Lawyers Pty Ltd

ORDERS

1. The parties have equal shared parental responsibility for the child X born (omitted) 2007 (“X”).

2. X live with the mother.

3. X spend time and communicate with the father as follows:

   (a)Each weekend at the conclusion of school on Friday until the commencement of school on Monday, extending to 5.00 pm on Monday if that Monday be a public holiday or a student free day;

   (b)On the other week at the conclusion of school on Thursday until the commencement of school on Friday;

   (c)For one half of Victorian Gazetted School holidays;

   (d)For one half of the Victorian Gazetted Summer holidays on a week about basis or as otherwise agreed between the parties in writing;

   (e)At Easter, alternating between 4.00 pm Easter Thursday to 4.00 pm Easter Saturday in each even-numbered year and 4.00 pm Easter Saturday until 4.00 pm Easter Monday in each odd-numbered year;

   (f)At Christmas, alternating between 4.00 pm Christmas Eve to 4.00 pm Christmas Day in each even-numbered year and 4.00 pm Christmas Day to 4.00 pm Boxing Day in each odd-numbered year;

   (g)On the child’s birthday, if it otherwise falls during the mother’s time with the child, from after school until 7.30 pm if on a school day and from 10.00 am until 2.00 pm if on a non-school day;

   (h)On the father’s birthday, if it otherwise falls during the mother’s time with the child, from after school until 8.00 pm if on a weekday and from 10.00 am until 3.00 pm if on a non-school day;

   (i)On Father’s Day, if it otherwise falls during the mother’s time with the child from 9.00 am until 6.00 pm; and

   (j)Any such further or other times as agreed between the parties in writing.

4. The father’s time be suspended as follows:

   (a)At Easter, alternating between 4.00 pm Easter Thursday to 400 pm Easter Saturday in each odd-numbered year and 4.00 pm Easter Saturday until 4.00 pm Easter Monday in each even-numbered year;

   (b)At Christmas, alternating between 4.00 pm Christmas Eve to 4.00 pm Christmas Day in each odd-numbered year and 4.00 pm Christmas Day to 4.00 pm Boxing Day in each even-numbered year;

   (c)On the child’s birthday, if it otherwise falls during the father’s time with the child from after school until 7.30 pm if on a school day and from 10.00 am until 2.00 pm if on a non-school day;

   (d)On the mother’s birthday, if it otherwise falls during the father’s time with the child from after school until 8.00 pm if on a week day and from 10.00 am until 3.00 pm if on a non-school day;

   (e)On Monday’s Day, if it otherwise falls during the father’s time with the child from 9.00 am until 6.00 pm; and

   (f)Any such further or other times as agreed between the parties in writing.

5. For the purposes of changeover, where changeover does not occur at the school, changeover is to occur at McDonalds in (omitted).

6. Both parties be permitted to reasonably contact X at all times outside of school hours and the parent with care of X will make all efforts to facilitate same.

7. X be permitted to reasonably contact either parent at their request or the other parent will make all efforts to facilitate same.

8. Each parent must keep the other advised of any serious illness or injury to X within 24 hours of same and immediately in the case of any hospitalisation of X.

9. Each parent must keep the other advised of any medical or like practitioners treating X including their name, address and contact details.

10. Both parents be permitted to liaise directly with any medical or like practitioners treating X, and obtain documents normally available to parents and these Orders shall act as an authority for same.

11. Each parent must ensure that the other parent’s details are listed on any enrolment record for any school and/or extra-curricular activity that X is enrolled in.

12. Both parents be permitted to liaise directly with any school and/or extra-curricular activity that X is enrolled in, to obtain documents normally available to parents, including but not limited to newsletters, reports, photographs and the like and these Orders shall act as an authority for same.

13. Both parents be permitted to attend any school or extra-curricular activity that X is involved in, including but not limited to parent/teacher interviews, sports days, concerts, plays and the like.

14. Both parents keep the other informed of any change to their contact telephone numbers and/or email address within 24 hours of any change to same.

15. Both parents keep the other informed of any change to their residential address 14 days before any proposed change.

16. Both parents be restrained from:

    (a)Denigrating the other or the other’s family in the presence and/or hearing of X;

    (b)Involving X in or discussing with or in the presence of the child any parenting matters including but not limited to X’s time spent with each parent;

    (c)Discussing Court proceedings, be it these proceedings or any other with or in the presence and/or hearing of X;

    (d)Passing messages through X; and

    (e)Involving X in any form of dispute between the parents or otherwise.

AND THE COURT NOTES THAT:

A.Pursuant to section 65DA(2) and section 62B 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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5649 of 2014

MR BOND

Applicant

And

MS MILLS

Respondent

REASONS FOR JUDGMENT DELIVERED EX TEMPORE.

1. This is an application for final parenting orders in respect of the child X.  X is seven years of age.  The parents commenced cohabitation in 2009 and separated in 2014.  The most recent living arrangements for X have had her living primarily with the mother and spending four nights per fortnight with the father.  The father is the applicant in his application, which was something of a moving feast in so far as the orders he seeks, or as his Counsel described, a “wish” list.  My observations of the father are such that I am not critical of him in that way, given the issues between the parents and particularly the residual conflict and their personalities and particular traits.

2. The father’s position is that he seeks orders whereby X live primarily with him, effectively in a mirror image of the status quo.  That is, that X spends 10 days a fortnight with him and four with the mother, being every second weekend and the Thursday overnight on the off week, together with times at school holidays.  He proposes an order for equal shared parental responsibility. 

3. The mother argues for a continuing of the status quo but for an order for sole parental responsibility in her. 

4. Each of the parties gave evidence.  Each relied on two affidavits.  Each was represented and had the benefit of experienced Counsel who intrusively tested the evidence of the other party. 

5. I also had the great assistance of a family report of Ms B.  The report is of some vintage in that it is dated 28 October 2014.  However, to my mind, the observations were insightful, child-focussed, of great assistance to the Court and, as I have said earlier, the pity is that they were not of some real assistance to the parties as, in my view, they could have been before having them endure a trial.  Ms B gave evidence and was cross-examined by Counsel. 

6. These are parenting proceedings. I am to have the best interests of X as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (“the Act”). In determining those best interests I am to reference the probative evidence and the proposals of the parties to the mandatory considerations under sections 60CC(2) and (3) of the Act. There is also an issue of parental responsibility. The Act, at section 61DA, provides a presumption that the parents will have equal shared parental responsibility for their children and I emphasise that is as distinct from regimes of time between the children and the parents but rather addresses the more longer-term, important and serious functions that parents are called upon to discharge in respect of their children.

7. The presumption under that section does not apply if the Court is reasonably satisfied that there has been family violence or abuse within the relationship or the children’s home or, alternatively, is rebuttable if the Court believes that such an order is contrary to the child’s best interests.  If the presumption is applied and not rebutted then the Court is obliged to enter upon a statutory and intellectual course of consideration where, firstly, the Court considers whether the child’s best interests are served by living in an equal shared time regime between the parents. That is one of the proposals put in the alternative by the father here.  If the Court is of the view that such a regime is either not in the child’s best interests or not reasonably practicable then the Court is to move to consider whether the child spending a regime is of substantial and significant time between the parents is in that child’s best parents and reasonably practicable. 

8. The issues in this matter can be isolated as follows. Firstly, there is an issue raised by the applicant father as to the mother’s capacity to care for X with particular reference to the mother’s alleged historical use and abuse of alcohol, which indeed is conceded to a large degree but on the father’s case either continues or there is a reasonable probability of relapse.

9. There are also issues of corporal punishment within the mother’s home unit and generally as to her standard of care of the children. 

10. The mother raises issues in respect of the father’s insight into X’s needs as, for example, his very application which would have the effect of removing X from a long-standing status quo living in a home unit with her mother and also from that home or that family unit where her sister Y, who is 14 years of age, also resides.  The mother’s case questions the father’s understanding of the child’s needs to be excluded from adult parental dispute where the child is just seven years of age.

11. The mother also raises issues as to the father’s capacity in that he works five days a week and would rely on assistance in the care of X.  As I mentioned to Counsel during their helpful addresses, little evidence was given and none adduced in respect of that issue. 

12. The mother, as a large part of her case raises allegations of historical family violence during her relationship with the father. 

13. The family report is detailed in its investigative forensic approach.  The reporter assists me in having interviewed not just the parents and X but the 14-year-old Y. 

14. Ms B was vigorous and forthright in some of her evidence today in respect of the issues that I have just articulated, including the allegations of family violence, the nature of the relationship of X with each of the parents and issues regarding the mother’s capacity.  As an example, when cross-examined today and a question was put to her by Counsel for the father, being:

    How would X cope with a change of residence to four nights with him, with the mother and the rest with the father?

15. Ms B’s response was:

    She would be emotionally scarred and you would be putting her with the person she fears and confirm with her that she is unsafe and powerless.  She will learn that love equals abuse.

16. As I have said earlier, I find those comments, whilst indicative of the care and extent taken by Ms B in her investigative process, there was an element of “professional passion” in some of her evidence, although generally I am prepared to accept her observations and her reporting.  In summary, Ms B is of the view that X suffers from having been present at and perhaps witnessed and exposed to family violence during her parents’ relationship.  She sees Y as exhibiting the same and perhaps more severe symptoms of witnessing that abuse and Ms B was prepared to provide a diagnosis of Post-Traumatic Stress disorder in Y.

17. Ms B is of the view that X is compromised and conflicted in her relationship between her parents to the stage that she “fears” that her parents would come into contact at the very interview venue for the purposes of this report.  Ms B concludes her report with a recommendation that would, in fact, reduce the time that X currently spends with her father.  I stress that this is not a position now taken by the mother. 

18. On the evidence before me, I am satisfied that X has a good, a loving and a meaningful relationship with each of her parents. I am not prepared to accept, on all of the evidence including that of the mother herself, Ms B’s proposition that X’s relationship with her father is one based on fear.

19. The nature of those relationships, however, are substantially different.  By reason of simple history and perhaps the personalities, insight and nature of each of the parents, I am satisfied on the balance of probabilities that X very much has a primary attachment to her mother.  That does not mean that she does not have an attachment to her father and, as I have said, she has a loving and pleasurable relationship on her father.  I accept the father’s position that X very much enjoys being with him.  They do things together and spend time together but as I said, it is a different relationship than that which she has and does enjoy with her mother. In this sense the criticisms of the mother by the father are unjustified and show a distinct lack of insight in him of the nature of parent-child relationships.

20. On reflection and consideration of the evidence, I am satisfied on the balance of probabilities that there was family violence during this relationship.  The mother’s allegations are highly particularised.  She withstood cross-examination and made no concessions whereas she was also a witness able to make admissions on occasions against interest.  Her allegations are corroborated by Y to the family reporter, photographic evidence and, in a sense, by X herself in what was observed by Ms B as to the fears that X holds in respect of her parents’ own relationship.  Those findings are mitigated to a degree that I am also satisfied, as the father claims, that the mother was frequently and regularly heavily under the influence of alcohol during the course of the relationship and the likelihood that heavy and regular use of alcohol may well affect one’s personality within a relationship. However, as I said, that is a mitigation.  It is not an excuse and does not exonerate someone from perpetrating family violence.  In any event and despite those findings, these people are now separated.  I am able to make orders which will effectively keep them apart.  They would be wise to reflect – and what I have just said, to an extent, extends some blame to each of them – on the situation in which they placed X and Y and the effects on these children are evident from a reading of Ms B’s report. 

21. X is seven years of age.  She would not ordinarily be expected to be able to articulate a mature or rational view as to her preferred living arrangements.  This child, on the evidence of Ms B, is conflicted and compromised in her relationships with her parents and almost certainly from what she has witnessed in her earlier years. Her preference is to be removed from that conflict in those relationships and that is her priority, rather than expressing preferences or views as to her living arrangements.  The capacity of these parents is perhaps compromised for both of them and reflects my observations again of their different personalities.  

22. The father – and this is not a criticism but it is simply an observation, I saw as being an unsophisticated, uncomplicated young man dealing with the issues of coming out of a relationship whilst being the father of a young child and having been a supportive, in many ways, stepfather of Y. He gave his evidence very much in a negative and often laconic fashion, at times seeming to be cold and unemotional in his evidence.  That is simply a factor of the father’s personality.  Nevertheless, he was generally unable to be positive in respect of the mother or X’s relationship with the mother.  Again, that is not an unusual situation in matters that come before these Courts where people, perhaps understandably, believe that they may have a greater chance of success in a parenting case by being able to emphasise their criticisms of the other parent rather than to bring to the Court their own positive traits.

23. The mother, I observed to be a stoic personality and that is now emphasised by my findings in respect of family violence.  She was candid and objective in her evidence.  She was able to be child-focussed in respect of X and I saw her as being able to remove her own personal feelings of her relationship breakdown from the responsibilities that she has in respect of X and generally was positive, despite her own issues, in respect of X’s relationship with the father.  She was candid and was able to make admissions against interest. 

24. The mother’s capacity as a parent is challenged in respect of her historical alcohol use and abuse.  She admits that.  She says that she has dealt with those issues.  I have before me a recent liver function panel test which is a test which, in my experience, is often used in the lower criminal Courts and has some evidentiary value in that it is indicative of a functioning liver which is contrary to the continuation of alcohol abuse.

25. In his submission, Counsel for the father urged me to consider whether the mother would relapse into her alcohol abuse or addiction.  There is simply no evidence before me to make such a finding.  I am not an expert.  I am unable to make such findings.  I deal with the evidence that I have before me now.  Significantly, Y, in her reports to Ms B, was able to candidly describe to her mother historically as someone who abused alcohol.  Y was able to convey to Ms B that those issues had been addressed.  On the balance of probabilities, I am satisfied that they have been addressed. 

26. If there is an issue raised in respect of the mother’s discipline of X or the children in her household then I place little weight on that, given the paucity evidence and cannot make any findings contrary to the mother. This is a mother who has had the primary responsibility for the care of two children in her household.  Significantly, the father’s position, as I understand it, is that he would delegate the responsibility for the care of X to the mother for four days a fortnight.  I find that proposal difficult to reconcile with any argument he has challenging her capacity to properly care for X.

27. I have dealt with issues of family violence. 

28. I should consider the effect on the child of any change in her circumstances anticipated by these proceedings.  I have already read into these reasons the quote from Ms B. Whilst I perhaps would not go so far on the evidence before me in respect of the superlatives used by Ms B, the material in the family report highly persuades me that this child would be negatively impacted in her relationships with each of her parents should she be removed to live primarily with her father. To put that into another context, I am of the view that X, despite her fears of her parents’ conflict, has managed to establish in a parallel sense, relationships with each of them.  She has a relationship with her father independent of her mother.  She has a relationship with her mother independent of her father and she, as a seven-year-old – and it is to her great credit –succeeds in those relationships.  Taking all of those matters into account, I am not of the view, as I have said, that X’s best interests are not served by a change in her primary parenting or living arrangements.

1. I turn to the issue of parental responsibility.  The mother’s Counsel urges that I make an order for sole parental responsibility in the mother, as I understand it, on the following bases (1) that it is unlikely to be exercised because there are no immediate issues of religion, education or medical procedure.  Secondly, if such issues do arise then there would be an expectation that this mother, who has been the victim of family violence, on my findings, would be required to “deal with the perpetrator of that violence”.  And I think I can infer a third reason or third argument and that is that these parties are fundamentally, at this stage at least, uncooperative and uncommunicative in their parenting.  I am not persuaded by that argument.  I would prefer, as I have said earlier, the position taken by Cronin J in a number of decisions where his Honour opines that despite the difficulties experienced by parents coming out of relationships those parents should be able to compartmentalise their own residual or historical difficulties and move forward to parent their children. That is, the effort should be made to parent cooperatively and separate from their feelings towards each other.

2. Children will generally benefit by seeing, knowing and understanding that their parents are cooperating in the important decisions in respect of them.  An order for parental responsibility is not synonymous with an order that the parents must like each other.  They are completely different matters.  Finally, I am also persuaded in this regard by my observations of the mother as a stoic, strong and assertive individual.  I am of the view that X’s best interests are served by there being an order for equal shared parental responsibility.  They are my reasons.  The orders will be taken out.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 7 October 2015