Bradley and Cooper (No. 2)

FAMILY COURT OF AUSTRALIA

BRADLEY & COOPER (NO. 2)

[2008] FamCA 522

FAMILY LAW – CHILDREN – parenting orders – non compliance with orders – no appearance by father – undefended hearing

Family Law Act 1975 (Cth)

FATHER:

Mr Bradley

MOTHER:

Ms Cooper

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

DGF

2151

1999

DATE DELIVERED:

14 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

14 May, 2008

REPRESENTATION

THE FATHER:

No appearance

SOLICITOR FOR THE MOTHER:

Gray Friend & Long

INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

That all existing parenting orders in respect of the children K born … April, 1993 and E born … March, 1996 (“the children”) be discharged.
That the mother and father have equal shared parental responsibility for the children.
That the children live with the mother.
That 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)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;
(c)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;
(d)from 3:00 pm. on Christmas Day until 3:00 pm. on Boxing Day in 2009 and each alternate year thereafter;
(e)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;
(f)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 in writing.
That notwithstanding paragraph (4)(c) 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.
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.
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 the children 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.
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.
That 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 ….
That 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.
That the children attend D Secondary College 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.
That as soon as practicable the mother authorise the principal of D Secondary College to provide to the father 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.
That as soon as practicable the mother provide a sealed copy of these orders to the principal of D Secondary College.
That 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.
That 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.
That all extant applications be otherwise dismissed.
That the evidence given this day by the mother be transcribed and a copy be provided to the parties and placed on the court file.
That the reasons for judgment delivered this day be transcribed and a copy be provided to each of the parties.
That these applications be removed from the List of matters awaiting finalisation.
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.
That the independent children’s lawyer be discharged one month from this date or, if a notice of appeal is filed, on determination of the appeal.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

AND THE COURT NOTES that in the judgment delivered this day it made it clear that these orders require the father to do all things necessary to return the children to the mother on the days and at the times specified in the orders, and at the changeover place specified in the orders, and that asserted reliance on a child’s wishes will not constitute a defence in the event the orders are breached by the father.

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

The matter comes before me today as an undefended hearing. The reasons for that are set out in a judgment I delivered on 15 January 2008. I will repeat some but not all of the background.
The parties were 21 and 15 when they met in 1984. They lived initially with parents until 1993, when they moved into their own home. They never married. Their sons were born in 1993 and 1996. K is in year 9 and E is in year 7.
The parties separated in 1999 when the boys were still very young. At that time, orders were made providing for a shared care arrangement on, broadly, a week and weekabout basis.
The father lives in regional Victoria with his brother. The mother also lives in regional Victoria. They are about 20 kilometres apart. As found in the earlier judgment, there is little or no effective communication between the parties.
The court has the benefit of a family report prepared by Ms C, dated 10 December, 2007. She saw both parents and the children on 3 December 2007. It is Ms C’s evidence that the boys have only known continuing animosity between their parents, and problems in making arrangements which work smoothly. In her opinion it is unlikely the parents will ever be able to co-operate with each other.

On 8 February 2006 the mother filed an application in which she sought to vary the existing parenting orders. She sought that the children live with her and spend time with their father. On 6 April 2006 the father filed a response in which he sought that the boys live with him. On 6 August 2007 the mother amended her application. She still sought an order that the boys live with her, and orders for alternate weekend time with their father, plus an order providing for the changeover point to be varied to McDonalds in …. The father did not file an amended response.
The case initially came before me on 2 November 2007. On the first day of the trial I ordered the preparation of a family report. As made clear in the earlier judgment, the father failed to appear on the second day of the trial. Orders had been made allowing both parties to appear by telephone on that day, to lessen inconvenience. The day prior to the hearing the father sent a fax to the court, advising that he was unable to attend by phone "due to work commitments".
As I noted in the ruling delivered on 15 January 2008, the children were, at that time, spending holiday time with the father, pursuant to existing orders. If his work commitments precluded him getting to a telephone for a brief court hearing it was unlikely he was with the boys himself; I could not say what arrangements had been made for them.
On 15 January 2008, having considered all the evidence before me, and after hearing submissions from the Independent Children’s Lawyer, I made detailed interim orders. The old parenting orders were suspended. Until further order, the children were to live with the mother and spend time with the father.
Despite his cavalier attitude, the father was given another chance to put his case before the court. Orders provided that if the father sought final parenting orders in terms other than the interim orders I made that day, he file and serve an amended response on or before 14 February 2008, setting out with specificity the final parenting orders sought by him. If he filed an amended response further directions were to be given in chambers and advised to the parties. If he did not file an amended response, the case was to proceed undefended, as it would be. I directed that, in those circumstances, the mother file and serve an affidavit of evidence‑in‑chief. The amended application, filed by her on 8 August 2007, would then be listed before me for an undefended hearing on a date to be advised.
The court sent a sealed copy of those orders to the father's address on the record. I also ordered that the evidence given by the mother that day be transcribed and a copy provided to each of the parties, and that was done.
The father failed to file an amended response. The mother, pursuant to the order, prepared and filed an affidavit. Probably due to a typographical error, she sought that final orders be made in the terms of the orders made on 15 January 2008, save as to paragraph 4. It is clear from a subsequent affidavit filed by her on 29 February 2008, and submissions put to the court by her solicitor in a prior hearing, that she intended to depose that she sought orders in terms of the orders of 15 January 2008, save for paragraph (4)(b).
Paragraph (4)(b) of the earlier orders provides that during school terms and during the cricket season the children spend time with their father on each Tuesday and Wednesday, from the conclusion of school until 7 pm.
The evidence before me today is of continuing problems in ensuring that the children are returned to their mother's home pursuant to those orders. The evidence supports a finding that the father simply ignores the order which requires the children to be returned at 7 pm. He has told the children that he does not care about the orders, and that he will do what he likes in respect of their return. He has also unilaterally imposed different, and inconvenient, changeover arrangements on the mother.
I take account of the evidence of an incident described in paragraph (3) of the affidavit of the mother filed on 29 February 2008. As noted, the orders provide that the children are to be returned to the mother's home at 7 pm on Tuesdays and Wednesdays during school terms. I have heard evidence today that to date in 2008 they have not been returned on six Tuesdays and six Wednesdays. On those occasions they have stayed at their father's home until the following day, in breach of the orders.
The children are required by the orders to be returned to their mother's home by the father at 6 pm on each alternate Sunday. On at least two Sundays in 2008, they have not been returned but have been held over until the following morning.
If weekend time coincides with a long weekend, the children are to be returned by the father to the mother's home at 6 pm on the Monday. On the one long weekend on which they have been with their father this year, he failed to return them on Monday; he held them over until the following Tuesday.
I make it clear that it is no defence to an application for contravention of orders to make broad assertions about children's wishes, expressed directly or inferentially. These orders require the children to be returned to the home of the resident parent at the times and on the days set out in the orders. Compliance with the orders is not optional.
The father’s obdurate refusal to obey orders is particularly important having regard to the evidence that E is displaying behavioural problems at school. The mother's evidence is that on three occasions in 2008 she has been advised of what were referred to as “incidents” involving E. One involved damage to a locker. One, potentially more serious, was of a knife being found in E’s locker, which he said he had brought from his father's home. The third arose from significant problems he was experiencing in relation to maths.
The last things that E needs are uncertainty about going to school, a cavalier attitude to school attendance, a lack of routine and parental modelling of disrespect towards his mother and others in authority. It is no answer to an allegation of breach of orders to say that the boys want to stay another night, or want to go to school from their father's home, or want to make a different arrangement.
The family report makes very clear that the long standing shared residence arrangement was not working for either of the boys. They made their wishes clear to Ms C; they want to live with their mother and spend fortnightly weekends with their father. They are happy to spend some time during the week with their father when they have cricket training, and some time, possibly, out of the cricket season as well.
K told Ms C that he knew an informal arrangement would not work, and that “Dad can’t hold his word, sometimes”. He agreed that his father left them alone at night on occasions, going to work at 10 pm and returning at 11 pm and 3 am to check on them, before coming home at 6 am. He said his father used marijuana about once each day and that they heard their father with various girlfriends at night.
E told Ms C he didn’t want to be seen with his parents because he feared his father might get angry and “then not return us, because he’s done that before”. He said he wanted to live with his mother and see his father every second weekend but was worried how his father would take that, because he could be really angry. He said he hadn’t told his father he wanted to live with his mother because his father would get angry and then not return them, “because he’s done that before”. He said he did not want to spend mid-week overnights with his father and was not persuaded by Ms C’s suggestion he spend three weekends a month with his father. E confirmed his father’s daily marijuana use, as well as that of his uncle, his father’s physical chastisement of both boys, and his father’s noisy love-making.
Ms C’s evidence is of the boys being aware of their father’s lack of co-operation with their mother’s usually reasonable requests, and her preparedness to put the boys ahead of her needs.
In the earlier judgment I summarised the evidence of the father’s response to the boys on learning what they said to Ms C.
The father has elected to ignore the proceedings in the court. On the first day of the trial I referred to his failure to fill in the required questionnaire, and to the excuse he gave, which was not persuasive. He failed to appear on the second day of the trial. He was given an opportunity to file an amended response and seek orders; he failed to take that opportunity. The evidence satisfies me that he has been served with each of the affidavits filed by the mother since the matter first came before me, and he has also been served with a copy of the orders of 15 January 2008, and a letter from the wife's solicitors.
In my judgment, the best interests of the children demand that final parenting orders be made. I take into account the objects and principles which underlie the part of the Family Law Act 1975 dealing with children. It is not put that the court should make any order other than an order that the parents retain equal shared parental responsibility for the boys. That being the case, the court must consider whether a shared residence arrangement would be in their best interests, and reasonably practicable. The evidence satisfies me that it would not; that is made very clear from the family report. A shared residence regime has been operating, to the boys’ detriment. It has not assisted their emotional or intellectual development. It was the clarity of that situation which resulted in the making of the interim parenting orders in January this year.
The court then has to consider whether spending substantial and significant time with the father would be in the children's best interests; by definition, that means time other than at weekends and during school holidays. Whilst initially I was of the view that that would be in their best interests, the chaotic and destructive consequences of the orders which provide for the boys to spend time with their father during the week conclusively undermine any potential benefit to them from that time with their father.
On the evidence before me, the children are being taught, through their father's example, that compliance with court orders is optional. Compliance with laws prohibiting the possession and use of marijuana is optional. Respect for the other parent is optional. This poor parental behaviour may or may not be a factor affecting E’s behaviour and development, but it cannot be helping it, particularly if his problems arise from difficulties in accepting discipline, or boundaries. The relationship of the children with their father can be maintained at a meaningful level by a more formal regime of weekend and school holiday contact, and contact on special days.
I am satisfied that orders providing for additional contact by written agreement of the mother should be made, being necessary to protect the boys from manipulation by their father.

I have taken account of the need to ensure as meaningful a relationship as possible between the boys and their father, and of their views. However, the evidence of the mother causes significant concern. The children may be teenagers but they require consistency, security and stability, not poor role-modelling and angry outburst. Ms C made very clear the importance of calm parenting of adolescents.
In those circumstances I propose to make orders as foreshadowed. I am satisfied the father has notice of the orders sought by the mother, but has abdicated from involvement in the case. That is consistent with the cavalier behaviour deposed to in the evidence before me.
The father must realise that if he continues to flout these orders there is a probability that the boys' time with him will have to be far more limited. It is their best interests which must be fostered, not the father’s irresponsible parenting.
I add that the evidence suggests both parents have experienced difficulty in ensuring the boys’ punctual attendance at school. That should be seen as a priority.

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

Dated the 11th day of July 2008.

…………………………………………
Acting Associate.

[2008] FamCA 522

14 May 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Breach