Bradley and Cooper

[2008] FamCA 110

FAMILY COURT OF AUSTRALIA

BRADLEY & COOPER [2008] FamCA 110

FAMILY LAW  -  CHILDREN -  parenting - LAT continuation  -  no appearance by father  -  interim orders  -  direction for filing of amended response  -  if no response filed, to be listed for final undefended hearing

Family Law Act 1975 (Cth)

FATHER: MR BRADLEY

MOTHER: MS COOPER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 2151 of 1999

DATE DELIVERED: 15 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 January, 2008

REPRESENTATION

No appearance for the Father

SOLICITOR FOR THE RESPONDENT:

Mr. Brooks by telephone,

Gray Friend & Long

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms A.M. Boymal

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That until further order all existing parenting orders in respect of the children K… born … April, 1993 and E… born … March, 1996 (“the children”) be suspended. 

1. That the children live with the father until 3:30 pm. on 29 January, 2008.

1. That until further order, and as and from 3:30 pm. on 29 January, 2008 the children live with the mother.

1. That until further order, and as and from 3:30 pm. on 29 January, 2008, the father spend time with the children as follows:

(a)during school terms, on each alternate weekend from the conclusion of school on Friday until 6:00 pm. on Sunday or, if the following Monday is a public holiday, 6:00 pm. on Monday, commencing on the second weekend in each school term;

(b)during school terms and during the cricket season, on each Tuesday and Wednesday from the conclusion of school until 7:00 pm.;

(c)for one half of each school term holiday period, at times to be agreed and failing agreement :

(i)the first half in 2008 and each alternate year thereafter, commencing at the conclusion of the last day of the school term and concluding at 12:00 noon on the middle day of the holiday period;  and

(ii)the second half in 2009 and each alternate year thereafter, commencing at 12:00 noon on the middle day of the holiday and concluding at 6:00 pm. on the last Sunday of the holiday;

(d)for one half of the summer school holiday period at times to be agreed and failing agreement :

(i)the first half in 2008/2009 and each alternate year thereafter, commencing at the conclusion of the last day of the school year and concluding at 12:00 noon on the middle day of the holiday period;  and

(ii)the second half in 2009/2010 and each alternate year thereafter, commencing at 12:00 noon on the middle day of the holiday period and concluding at 6:00 pm. on the last Sunday of the holiday period;

(e)from 3:00 pm. on Christmas Day until 3:00 pm. on Boxing Day in 2009 and each alternate year thereafter;

(f)if Fathers’ Day falls on a weekend when the children would not otherwise spend time with the father pursuant to these orders, from 10:00 am. until 6:00 pm. on Fathers’ Day;

(g)if the children would not otherwise spend time with the father on each of their birthdays, on each of their birthdays at times to be agreed and failing agreement :

(i)if the birthday falls on a school day, from the conclusion of school until 6:00 pm.;  and

(ii)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;

(h)at such other times as the parties may otherwise agree.

1. That notwithstanding paragraph (4)(d) hereof, the children shall spend time with the mother from 3:00 pm. on Christmas Day until 3:00 pm. on Boxing Day in 2008 and each alternate year thereafter.

1. That if Mothers’ Day falls on a weekend when the children would not otherwise live with the mother pursuant to these orders, the children shall spend time with the mother from 10:00 am. until 6:00 pm. on Mothers’ Day. 

1. That if the birthday of K or E falls on a day on which the children would not otherwise live with the mother pursuant to these orders, the mother shall spend time with K and E on each of their birthdays at times to be agreed and failing agreement :

   (a)if the birthday falls on a school day, from the conclusion of school until 6:00 pm.;  and

   (b)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.

1. That in these orders “the middle day” of a school holiday period means :

   (a)if there are an odd number of days in the holiday period, the middle day;  and

   (b)if there are an even number of days in the holiday period, the last day of the first half of the period. 

1. That until further order and save for changeovers which occur at the conclusion of a school day (which shall take place at the school) changeovers shall take place at McDonalds in …. 

1. That until further order each of the parties, by themselves, their servants and agents, be and are hereby restrained from:

   (a)denigrating the other party or any members of the other party’s family in the presence or hearing of K and/or E and from allowing any other person to do so in the presence or hearing of K or E;  and

(b)removing the residence of K and/or E from Victoria, save with the consent in writing of the other party.

1. That until further order the children attend D School and each of the parties be at liberty to attend the school from time to time for events, activities and functions routinely attended by parents. 

1. That as soon as practicable the mother authorise the principal of D School to provide to the father until further order and at his expense (if any) :

   (a)copies of each school report for K and E;

   (b)all order forms for photos of K and E;  and

   (c)copies of publications routinely provided to parents.

2. That as soon as practicable the mother provide a sealed copy of these orders to the principal of D School. 

1. That until further order, on each occasion that a period of the father’s time commences at the conclusion of a school day, he do all things reasonably necessary to ensure that the children take each item of school uniform clothing and of sporting equipment with them at the conclusion of that period of time. 

1. That until further order the father have reasonable telephone communication with the children during periods in which they live with the mother, and the mother have reasonable telephone communication with the children during periods in which they spend time with the father.

1. That if the father seeks final parenting orders in terms other than as provided in paragraphs (2) to (15) hereof, he file and serve an amended response (in response to the amended application filed by the mother on 8 August, 2007) on or before 14 February, 2008, and such amended response set out with specificity the final parenting orders sought by the father. 

1. That if the father files and serves an amended response pursuant to the preceding paragraph, further directions be given in chambers and advised to the parties. 

1. That if the father does not file and serve an amended response pursuant to paragraph (16) hereof :

   (a)the mother shall file and serve an affidavit of evidence in chief (which, in addition to evidence relied on by her, shall set out with specificity the final orders sought by her) by 28 February, 2008;  and

(b)the amended application filed by the mother on 8 August, 2007 be listed for an undefended hearing before the Honourable Justice Brown on a date to be advised. 

1. That a sealed copy of these orders be sent by the court to the father at his address for service. 

1. That the evidence given this day by the mother and by Mr. Brooks be transcribed and a copy be provided to each of the parties and placed on the court file. 

1. That the reasons for judgment delivered this day be transcribed and a copy be provided to each of the parties. 

1. That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

AND THE COURT NOTES  that by fax addressed to the court and received on the afternoon prior to the hearing, the father advised he would not be appearing by telephone (as previously ordered) due to work commitments.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2151 of 1999

MR BRADLEY

Father

And

MS COOPEr

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case concerns the parties' sons K (who is nearly 15) and E (who is nearly 12). The matter was listed before me on 2 November, each of the parties having signed consents for it to proceed under Division 12A of the Family Law Act 1975. On that day the questionnaire required by the relevant practice direction had been filed by the mother but none had been received from the father. He asserted he had completed a questionnaire and sent it to the independent children's lawyer and that he did not keep a copy or send one to the court. The ICL did not receive a questionnaire from him. Arrangements were made for him to complete a fresh copy questionnaire and it was filed on 2 November 2007.

1. Having heard from the father and from the mother's solicitor on that day, I ordered the preparation of a family report.  Ms C saw the parents and children on 3 December and prepared a family report, dated 10 December, 2007, which was admitted into evidence. 

1. Today is the second day of the trial.  As each of the parents live in the country, I directed that they could appear by telephone today.  The mother appears by telephone, represented by her solicitor.  The independent children's lawyer is represented by counsel.  The father has not appeared.  Yesterday afternoon he sent a fax to the court, advising he was unable to attend a phone appearance "due to work commitments". 

1. As I noted in earlier discussion with counsel, I had understood the position to be (as described in the family report) that the father was involved in night work, but that may have changed or he may work night and day shift.  Pursuant to existing orders the boys are presently spending school holiday time with him.  If he is telling the truth in the fax, and work commitments preclude him getting to a telephone for this hearing, it is improbable he is presently with the boys.  I cannot say what arrangements have been made for them.

1. As no orders were made on the first day of the trial requiring the parties to file fresh affidavit material, I have no evidence on oath from them, save evidence I took on affirmation from both the mother and from her solicitor today, about recent events. 

1. The family report notes that the parties were 21 and 15 when they met in 1984 and they lived together, initially with parents, until 1993, when they moved into their own home.  They did not marry and they separated in 1999.  Their sons were born in 1993 and 1996.  In 1999, orders were made providing for a shared care arrangement, the boys spending week and week about with each of their parents.

1. The father lives in regional Victoria with his brother.  The mother also lives in regional Victoria.  Her partner lives in New South Wales, due to work commitments.  The parents live around 20 kilometres apart.  There is little or no communication between the parties.  As Ms. C reports, the boys have only known continuing animosity between their parents and problems in making arrangements which work smoothly. 

1. On 8 February 2006, the mother applied to vary those orders and for the boys to live with her.  On 6 April 2006, the father sought to have that application dismissed and orders providing for the boys to live with him.  On 6 August 2007, the mother amended her application.  She sought to vary the changeover point to McDonalds in her home town, and for the father to spend fortnightly weekends with the boys. She maintained her application that they live with her.  The father has not filed an amended response. 

1. The family report makes it very clear that the present arrangement is not working for either of the boys.  The boys want to live with their mother and spend fortnightly weekends with their father, plus some time during the week when they have cricket training and, possibly, out of cricket season as well. 

1. The children are presently with their father for some school holiday time.  The period was to commence on 9 January.  The mother asked that the boys be able to attend a family get-together, to which the father agreed.  He said he would collect them on Friday, 11 January.  He then rang and told the mother they could stay another night with her, as he was not able to make it on Friday, and instead collected them on the morning of Saturday, 12 January.

1. E is due to go back to school on 30 January, starting at D School.  K is to return to year nine at D School on 31 January.

1. Ms C noted that while the father presented as being happy with the present shared parenting arrangement, he knew it was difficult for the boys.  He moved between saying he wanted nothing save what the boys wanted, and that he knew that they did not want the week and week-about arrangement to continue, to saying that the mother only wanted the children to live with her so she would get more money and to repeating that he had "filed for the children to live with him." 

1. The mother’s submission is that the present arrangement is not in the boys’ best interests and that they are struggling with it.  Ms. C noted, after interviewing the boys, that it was evident that the father had not been frank with her about a number of matters, including his use of marijuana, him leaving them alone at night while he worked, and the fact that the boys frequently heard him at night making love to his various girlfriends.  She said that, in the boys’ words, he is, "unable to hold the truth," or, "keep his word."  While Ms. C made it clear that she did not attribute all responsibility for the failure to communicate and the problems with arrangements to the children's father alone, she also made it clear that she saw little chance of change in those respects and that the boys’ analysis of the situation was, in many respects, consistent with their mother's.  From their perspective, problems occurred as a result of their father changing his mind, not co-operating with their mother or them, breaking his word and causing difficulties when the children moved between their parents or had commitments to attend.  Ms. C’s report makes it clear that when she told the father what the boys had told her, he was clearly shocked.

1. I heard evidence this morning from the mother about the circumstances in which K was returned to her home the day after the session with Ms. C.  It is consistent with a number of things the boys told Ms C about their father's temper, and about his inconsistent parental behaviour.  I am mindful of the fact that the father has not been given an opportunity to answer those allegations.  However, it would be of significant concern were a parent treat a child in the way alleged and, in my judgment, not inconsistent with the pattern of the father’s behaviour described in the family report.  It is one thing to be shocked at hearing what a child has said to a third party.  It is another to then act in a punitive and aggressive way to the child. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. What is important for children, including boys of these ages, are consistency, predicability and stability.  At this stage I would certainly not find that the presumption of equal joint parental responsibility should not apply.  In those circumstances, the court must consider, even at this point in the trial, whether an order should be made for shared residence.

1. I have no hesitation in finding on the evidence before me that such an order would be contrary to the children’s best interest.  A shared residence regime has operated since 1999.  It may have worked reasonably well at some time but it is patently clear it is not working now, and each of the parents acknowledged that to Ms. C.  The boy's view's are a matter to which real, not notional, weight needs to be given, and they have made their views very clear. 

1. The father has elected not to appear today, despite the court doing its best to facilitate his involvement by allowing him to appear by telephone.  He has not filed an amended response, so I cannot say what final orders he now seeks, as the information he gave to Ms C was, as she noted, inconsistent.

1. In these circumstances I am satisfied that the best interests of the boys require the making of interim orders to change the present arrangements.  These proceedings have been on foot for nearly two years and it is probable the continuing conflict is impacting adversely on the boys.  It is, for example, most unfortunate that neither attended their speech nights in December 2007.  They were with their father at those times and it was his responsibility to ensure they attended.  For E, it was the last such event at his primary school, which can be an important time for a child.  K is a member of the band which performed at the D School speech night;  he did not have the opportunity to do that, and may have let down his school mates in the band.  It is a parent's responsibility to ensure that important events like that are attended by children and are not seen as optional. 

1. I propose, until further order, to suspend all existing parenting orders.  Until further order, the boys will live with the mother and spend time with the father during school terms on each alternate weekend, from the conclusion of school on Fridays until 6 pm on Sundays, commencing on the second weekend of the school term.  During the cricket season, they will be with him on each Tuesday and Wednesday, from the conclusion of school until 7 pm.  They will, as now, spend one half of each school holiday period with him;  if the parties cannot agree it will be the first half in 2008 and each alternate year, and the second half in 2009, and each alternate year thereafter. 

1. Orders will ensure that, until further order, the children will spend time with both parents at Christmas and with their father on Fathers’ Day and their mother on Mothers’ Day. 

1. Changeovers which take place at the end or beginning of a school day will obviously take place at the school;  otherwise they will be at McDonalds.

1. As these are interim orders made in the absence of the father, I will order that the mother not relocate the children’s residence outside Victoria without the approval of the court, or the written consent of the father.  I do not make a finding she is likely to do so but it was an order sought by the father and cannot prejudice the mother.

1. I will order that the father do all things reasonably necessary to ensure that both boys return to their mother's home with their school uniforms and sporting equipment on days that they have been collected from school by him.  As I said in the course of submissions, the boys are old enough to play a more active role in that respect.

1. If the father seeks final parenting orders in terms other than the interim parenting orders made today, he can file and serve an amended response (to the amended application filed by the mother on 8 August 2007) on or before 14 February 2008.  If that is done, further directions will be given in chambers.

1. If the father fails to file an amended response by 14 February, 2008, orders will provide for the mother to file and serve an affidavit of evidence‑in‑chief (including particulars of the final parenting orders sought by her) and the case will be listed for an undefended hearing before me, on a date to be advised.  I am satisfied that is consistent with the children’s best interests.  There must be an end to the litigation.  If there is a real dispute to be determined, it will be determined.

1. Orders will provide for a sealed copy of the order to be served on the father at his address for service. 

I certify that the preceding
29 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2008.

…………………………………………
Associate.