Brainard and Wahlen & Anor

[2011] FamCA 610

FAMILY COURT OF AUSTRALIA

BRAINARD & WAHLEN AND ANOR [2011] FamCA 610

FAMILY LAW - CHILD ABUSE – Magellan case – allegations of mother physically abusing child – mother’s alleged family violence – father’s alleged family violence – parties abandon their concerns – finding the parties committed family violence – apprehended violence orders issued against both parties – risk of harm to child averted by the apprehended violence orders – order made restraining the parties’ infliction of corporal punishment upon the child

FAMILY LAW - CHILDREN – Parental responsibility – child has a meaningful relationship with and attachment to both parents – child too young to express views – each party willing and able to facilitate and encourage close and continuing relationship between the child and other party – history of illicit drug use by both parties and alcohol use by father – order restraining parties’ use of alcohol – presumption of equal shared parental responsibility does not apply due to past occurrence of family violence – child’s best interests require parties to have equal shared parental responsibility

FAMILY LAW - RELOCATION – with whom the child shall live and spend time – mother relocates away from the locality of the father’s residence – mother agrees to relocate her residence in the near future closer to father’s residence – not in the best interests of the child to live with the parties for equal time – order for child to live with mother and spend substantial and significant time with father upon the mother relocating her residence closer to the father

FAMILY LAW - INCONSISTENT ORDERS – necessary to make parenting orders inconsistent with family violence orders in order to promote the child’s best interest

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC, 65DAE, 65DAA, 65LA, 68P

Amador v Amador (2009) 43 Fam LR 268
AMS v AIF (1999) 199 CLR 160
B & B [2003] FamCA 274
B & K [2001] FamCA 880
Goode v Goode [2006] FLC 93-286
Marriage of Blanch [1999] FLC 92-837
Marriage of JG & BG [1994] FLC 92-515
MRR v GR (2010) 240 CLR 461
Sampson v Harnett (No 10) (2007) FLC 93-350

APPLICANT: Ms Brainard

1st RESPONDENT: Mr Wahlen

2nd RESPONDENT: Mr Stela

INDEPENDENT CHILDREN’S LAWYER: Mullane & Lindsay

FILE NUMBER: NCC 124 of 2011

DATE DELIVERED: 5 August 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 5 & 6 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gorton

SOLICITOR FOR THE APPLICANT: Legal Aid NSW, Gosford Office

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brady

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mullane & Lindsay

Orders

1. All former parenting orders relating to the child B, born … August 2010, (‘the child”) are discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. Whilst ever the mother lives within 35 kilometres of the post office at Town 1, NSW:

   (a)       The child shall live with the mother.

   (b)       Unless otherwise agreed, the child shall spend time with the father: 

   (i)Until 10 April 2012, each Monday and Wednesday, between 10.00 am and 4.00 pm, and from 10.00 am each Friday until 10.00 am each Saturday; and thereafter

   (ii)Until the child commences school, from 10.00 am each Monday until 10.00 am each Tuesday, each Wednesday between 10.00 am and 4.00 pm, and from 10.00 am each Friday until 10.00 am each Saturday; and

   (iii)Once the child commences school:

   (A)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday, commencing on the first Friday of the school term;

   (B)Each alternate week from the conclusion of school on Monday until the commencement of school the next day, commencing on the first Monday after the Monday on which the child is returned to school pursuant to Order 3(b)(iii)(A) hereof;

   (C)Half of all school holidays, being the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years.

4. Whilst ever the mother lives more than, and the father lives within, 35 kilometres from the post office at Town 1, NSW:

   (a)       The child shall live with the father.

   (b)Unless otherwise agreed, the child shall spend time with the mother each weekend from 4.00 pm Friday until 4.00 pm Sunday, commencing on the first Friday after these orders are made.

5. For the purpose of implementing Order 3, the party with whom the child is to live or spend time shall collect the child:

   (a)From school, whenever such time is to commence following the conclusion of school during school term, or

   (b)From the residence of the other party whenever such time is to commence at a time other than the conclusion of school during school term.

6. For the purpose of implementing Order 4 hereof, the mother shall collect the child from the residence of the father at the commencement of the time the child is to spend with her and return the child to the same place at the conclusion of the time spent with her by the child.

7. Each party is restrained from consuming alcohol during any period in which the child lives or spends time with them, and also during the period of 12 hours immediately preceding such time.

8. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

9. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 11 hereof, whichever is the later.

15. By reason of an inconsistency between some of these Orders and existing Apprehended Violence Orders, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

    (a)       The Registrar of the Local Court of NSW at Town 2

    (b)       The Commissioner of the NSW Police Service

    (c)The Director General of the NSW Department of Family and Community Services

16. Any and all outstanding applications are dismissed.

Notations

(A)Orders 2, 3, 4, 8, and 9 hereof are inconsistent with paragraph 5 of the Apprehended Violence Order made against the mother in favour of the father and the child by the Local Court of NSW at Town 2 on … January 2011, in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and those parenting orders prevail to the extent of any inconsistency.

(B)Orders 2, 3, 4, 8, and 9 hereof are inconsistent with paragraph 5 of the Apprehended Violence Order made against the father in favour of the mother and the child by the Local Court of NSW at Town 2 on … July 2011, in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and those parenting orders prevail to the extent of any inconsistency.

IT IS NOTED that publication of this judgment under the pseudonym Brainard & Wahlen and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 124 of 2011

Ms Brainard

Applicant

And

Mr Wahlen

First Respondent

And

Mr Stela

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the parenting orders that should apply to two children born to the applicant mother by the two respondent fathers.

2. The proceedings in so far as they relate to the eldest child were settled between the mother, second respondent father, and Independent Children’s Lawyer. Final consent orders were made in respect of that child on 30 May 2011.

3. These reasons therefore relate to the parenting orders applicable to the youngest child, B, born in August 2010, (“the child”) and resolve the dispute between the mother and first respondent father.

Background

1. As will be apparent from her date of birth, the child is not yet even 12 months of age.

2. The parties commenced their relationship in October 2009 and began cohabitation in April 2010. The child was born in August 2010 and the parties separated in December 2010.[1]

   [1] Mother’s affidavit, par 7

3. These proceedings were commenced by the mother on 6 January 2011. Her Initiating Application was filed in the Local Court of NSW at Town 1. That Court made interim parenting orders on 14 January 2011, with the consent of the parties, that relevantly provided for:

   a)The child to live with the father (Order 1);

   b)The child to spend time with the mother each day between 9.00 am and 6.00 pm (Order 2), subject to supervision for a period of several weeks by either of the maternal grandparents (Order 3);

   c)The child to be exchanged at the mother’s residence (Order 8);

   d)Transfer of the proceedings to this Court (Order 9).

4. The matter was given swift attention by this Court on 2 February 2011, since the father filed a Form 4 Notice of Abuse or Family Violence in the Local Court contemporaneously with his Response. In that Notice the father alleged the child had been physically abused by the mother. The proceedings were therefore allocated into this Court’s Magellan protocol and an Independent Children’s Lawyer was appointed to advocate the interests of the child.

5. On 28 March 2011, further interim parenting orders were made with the consent of the parties, which had the effect of amending the earlier orders made on 14 January 2011. In particular, the father was required to ensure that the child slept at the home of the paternal grandmother (Order 1.4.1) and changeovers were ordered to occur at Town 2 railway station (Order 1.4.2).

6. The Court ordered the preparation of a family report and the parties and child conferred with the Family Consultant on 12 April 2011. By the time the parties consulted with the Family Consultant, they had reached agreement about parenting arrangements and abandoned many of their fears about one another’s parenting capacity. In particular, the parties were happy with the child’s development,[2] the parties agreed to the child living with them for equal time,[3] the mother had no concerns about the father’s care of the child,[4] the father had no concerns about the mother’s care of the child,[5] and neither had concerns about the other’s drug use or misuse of alcohol.[6]

   [2] Family Report, par 71

   [3] Family Report, pars 13, 18, 49; Mother’s affidavit, pars 9, 120

   [4] Family Report, pars 29, 136

   [5] Family Report, pars 49-50, 54, 136

   [6] Family Report, pars 29, 55, 123

7. The Family Consultant later compiled an affidavit on 27 April 2011, which was released to the parties. The Family Consultant strongly advised that an equal time parenting regime was not in the best interests of a child who had not yet reached 12 months of age, despite the parties’ agreement to the contrary.

8. On 30 May 2011 the matter was fixed for trial on 5 July 2011 and procedural orders were made to ensure readiness of the matter for trial.

9. The mother filed her amended Application and affidavit material on 24 June 2011, later than ordered, which manifested a substantial change of attitude from the one of contentment she earlier expressed to the Family Consultant. The mother deposed that she had decided to relocate her residence from the Central Coast of NSW to Town 3 on the mid north coast of NSW. It was common ground in the trial that those regions are separated by travel time of some 4 hours, irrespective of whether the travel is by road or rail.

10. The mother relocated shortly after filing her affidavit, little more than a week or two before the trial. She did not do so unilaterally though. She discussed the proposed move with the father, who acquiesced to her relocation on certain conditions. He expected that they would continue to implement the equal time parenting regime for the child, and that the mother would be responsible for all of the travelling to ensure implementation of that regime. The father was also then ignorant of the mother’s pregnancy to her new partner, but was now concerned that her pregnancy and her responsibility for the new baby after its birth would preclude, or at least impede, operation of the parenting arrangements they discussed.

11. The trial commenced on 5 July and concluded on 6 July 2011. Judgment was reserved.

Proposal and primary evidence of mother

1. At the commencement of the trial the mother pressed for the orders set out within her “Further Further Amended Initiating Application” filed on 24 June 2011, the general effect of which were that:

   a)The parties have equal shared parental responsibility for the child (Order 2);

   b)The child live with the mother (Order 11);

   c)The child spend time with the father for three nights each four weeks (Orders 13.1, 13.2), and for three other separate weeks during the year, coordinated with school holidays once the child commences kindergarten in several years time (Orders 13.3, 13.4)

2. The mother’s proposal in respect of the restricted time spent by the child with the father was premised upon her recent relocation from the Central Coast to Town 3. The mother desired to retain her new residence with the child in Town 3.

3. However, as the trial unfolded, in the knowledge that the child’s best interests may require her residence to be much closer to the father’s residence, the mother’s alternate proposal was that a parenting regime consonant with that recommended by the Family Consultant could be implemented, but only following the elapse of a period of 6 months so as to permit her sufficient time within which to relocate her residence back to the Central Coast.

4. Ultimately, the mother abandoned the proposal that she and the child should remain living in Town 3 and conceded that she should re-establish her residence with the child on the Central Coast. She maintained, however, she should be permitted a period of 6 months within which to accomplish that relocation, and that in the meantime the child should live for equal time with the parties on a weekly rotation. In final submissions the mother tendered a Minute of Orders to that effect.[7] The father was prepared to countenance such an outcome, but the Independent Children’s Lawyer was not.

   [7] Exhibit M5

5. In evidence the mother relied upon:

   a)Her affidavit filed on 24 June 2011; and

   b)The affidavit of the maternal grandfather filed on 24 June 2011.

Proposal and primary evidence of father

1. The father attended Court late for the trial and was self-represented.

2. The father failed to file any documents in accordance with the procedural orders made by the Court on 30 May 2011. Irrespective of his complaint about not receiving a copy of those orders, he was in Court when the orders were announced and they were explained to him. He was aware of his obligations to ensure the readiness of his case for trial on 5 July 2011.

3. The father alleged that he had not received either a sealed copy of the Court’s orders made on 30 May 2011, or copies of the documents relied upon by the mother which she filed on 24 June 2011.

4. On 30 May 2011 the father announced to the Court his address for service. That was the address to which a sealed copy of the Court’s orders was sent shortly after they were made on 30 May 2011. That was also the address to which the mother sent copies of the documents upon which she relied.[8] Why the father did not receive copies of all those documents therefore remained unexplained.

   [8] Exhibit M3

5. The father confirmed that he wanted the trial to proceed. He did not seek an adjournment. Nevertheless, the start of the trial was delayed by the time requested by the father to enable him to read the documents relied upon by the mother.

6. The father initially announced that his proposal for the child was generally that:

   a)The parties have equal shared parental responsibility for the child;

   b)The child live with him; and

   c)The child spend time with the mother over one weekend per month, commencing at 9.00 am on Friday and concluding at 4.00 pm on the following Monday.

7. However, following discussions between the father and at least the Independent Children’s Lawyer, the Court was informed that the father proposed orders consistently with those proposed by the Independent Children’s Lawyer. Ultimately the father informed the Court he agreed with the orders proposed by the Independent Children’s Lawyer in her Minute of Orders.[9]

   [9] Exhibit ICL1

8. In the absence of any recent affidavit material, the father sought leave to rely upon his last affidavit filed on 14 January 2011. Leave was granted to him to do so, with the consent of the mother and Independent Children’s Lawyer.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer began the case by indicating that the outcome should bear resemblance to the recommendations of the Family Consultant. During the course of the first day of trial the Independent Children’s Lawyer refined the orders she proposed and a Minute of Orders was tendered.[10] The proposal generally made provision for:

   a)The allocation to the parties of equal shared parental responsibility for the child (Order 1);

   b)The child to live with the mother (Order 3); and

   c)The child to spend substantial and significant time with the father, defined as:

   i)Each Monday and Wednesday, from 10.00 am until 4.00 pm, and from 10.00 am each Friday until 10.00 am each Saturday, until the child attains 18 months of age (Order 5.1);

   ii)Expansion of that time to incorporate the time from 4.00 pm Monday until 10.00 am Tuesday, once the child attains 18 months of age (Order 5.2);

   iii)Once the child begins attendance at school, each alternate weekend from Friday after school until 4.00 pm Sunday, together with half of all school holidays (Order 6).

   [10] Exhibit ICL1

2. It was apparent that the proposal of the Independent Children’s Lawyer, supported by the father, could only prevail by reason of the immediate return of the mother to the Central Coast from Town 3. An injunction to that effect was sought (Order 11).

3. The Independent Children’s Lawyer also proposed the parties’ attendance at various counselling programs (Orders 7 and 10).

4. The orders proposed by the Independent Children’s Lawyer made no practical provision for parenting orders that should prevail in the period until the mother achieved her residential relocation back to the Central Coast. The Independent Children’s Lawyer adopted the idea that the child should live with the father and spend time with the mother for the short time it should take until the mother resumes residence on the Central Coast.

1. The Independent Children’s Lawyer relied upon the evidence of the Family Consultant set out within her affidavit affirmed on 27 April 2011. The parties conferred with the Family Consultant, which made it unnecessary for her to be cross-examined. The parties jointly informed the Court that the Family Consultant considered that:

   a)An equal time parenting regime is not in the best interests of a child as young as the child;

   b)The mother should arrange her residential relocation back to the Central Coast as soon as possible;

   c)The time spent by the child with the father on days during the week should be confined to the hours between 10.00 am and 4.00 pm; and

   d)The child should begin spending a second overnight period with the father each week from 12 months of age.

2. I generally accept the evidence of the Family Consultant, which was reasoned, rational, and balanced.

3. The Independent Children’s Lawyer also relied upon the contents of the Magellan Report dated 23 March 2011 furnished to the Court.

The contested issues

1. As a consequence of the fluidity of the parties’ proposals the issues in the litigation became quite narrow.

2. The issues were confined to, firstly, the detail of the substantial and significant time to be spent by the child with the father, and secondly, whether the implementation of that regime ought begin immediately or after a delay to enable the mother’s timely movement back to the Central Coast from Town 3. In the event of some delay, a third issue was what parenting arrangement should be implemented in the interim.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, 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 the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode v Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

1. The child has a meaningful relationship with both parties. The value of those relationships to the child is currently equivalent because the Family Consultant was unable to determine the party with whom the child had a primary attachment.[11] That is presumably due to the relatively equivalent distribution of time spent by the child with each party over her short life. The child acted contentedly with both the father and the mother.[12] The child will certainly benefit from preservation of those meaningful relationships with the parties, subject to the need to protect her from harm through exposure or subjection to abuse or family violence.

   [11] Family Report, pars 139, 154

   [12] Family Report, pars 76, 80

2. The parties’ recriminations against one another are serious, which makes it all the more perplexing why they each now abandon their concerns about their respective allegations.

3. The father alleged the mother physically abused the child as a tender infant by throwing her on to a lounge. He filed a Notice of Abuse or Family Violence notifying of the incident, and repeated his allegation to the Family Consultant.[13] That was why the proceedings were classified into the Court’s Magellan protocol. The father’s allegation now seemingly lacks veracity because it was made, in part, for forensic advantage.[14] In any event, the father no longer regards the child at risk of harm through abuse by the mother.

   [13] Family Report, pars 50, 90, 111

   [14] Family Report, pars 51-52, 91, 146

4. The mother alleged repeated and serious domestic violence was perpetrated by the father upon her. She made the allegation to the Family Consultant[15] and deposed to the details in her affidavit.[16] Notwithstanding those allegations, the mother has never wavered from her proposal that the parties should have equal shared parental responsibility for the child. That can only mean that the mother did not want the Court to find the presumption of equal shared parental responsibility was inapplicable due to the commission of family violence (s 61DA(2)), or that she considered an order for equal shared parental responsibility was justified despite the family violence. The purpose of adducing the evidence of family violence in her affidavit was not therefore apparent, particularly when the mother had already abandoned her concerns about the father’s parenting capacity when she discussed the case with the Family Consultant.

   [15] Family Report, par 101

   [16] Mother’s affidavit, pars 29-31, 82-87, 103-106, 108-114, 123

5. The father denied his commission of any family violence on or towards the mother.[17] That denial is hollow, though, given that the father was found guilty of an assault upon the mother by the Local Court of NSW at Town 2 on … July 2011. Although no conviction was recorded against the father for the offence, he was placed on a good behaviour bond for 2 years.[18] That court was therefore satisfied beyond reasonable doubt that the father had assaulted the mother on at least one of the occasions she alleged.

   [17] Family Report, par 57

   [18] Exhibit M2

6. The father also alleged the commission of family violence by the mother towards him.[19] The mother does not expressly deny acting violently towards the father, but she certainly infers the father to have been the principal aggressor. The mother does admit participation in violent arguments with the father,[20] and seemed to the Family Consultant willing to concede her role in exposing the child to family violence.[21] The mother also admitted to the Family Consultant that she had acted violently towards her former partner, being the father of her other child.[22]

   [19] Family Report, pars 101, 111, 113, 115

   [20] Mother’s affidavit, par 30

   [21] Family Report, pars 143-144

   [22] Family Report, par 103

7. On the balance of probabilities, it seems reasonably clear that both parties have committed family violence. That would also account for why each of them is now bound by an apprehended violence order. Such an order was made against the mother for the protection of the father and the child on … January 2011 for a period of 12 months,[23] and a similar order was made against the father for the protection of the mother and the child on … July 2011 for a period of 2 years.[24]

   [23] Mother’s affidavit, Annexure C

   [24] Exhibit M1

8. I am satisfied that there is an existent need to protect the child from the risk of psychological harm through her exposure to family violence committed by the parties in her presence. That risk however is averted, as far as can be reasonably achieved, by the apprehended violence orders which now bind each of the parties.

9. I am not satisfied on the available evidence that there is any existent need to take measures to protect the child from actual abuse by either party, save for the imposition of an injunction restraining the parties’ infliction of corporal punishment upon the child. An order to that effect is made.

Best interests of the child – additional considerations

1. The child is too young to express any view about the parenting arrangements affecting her.[25]

   [25] Family Report, par 74

2. The nature of the child’s relationships with the parties has already been addressed. There is insufficient evidence to draw any conclusions about the quality of the child’s relationships with maternal and paternal grandparents.

3. Each party has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other party. That is demonstrated by the parties’ agreement to an equal time parenting regime. It is also apparent from the manner in which they interacted with one another in the presence of the Family Consultant in April 2011.[26]

   [26] Family Report, pars 79, 82

4. The orders will not entail any significant change in circumstances to which the child will experience difficulty adjusting. Rather than living with the parties for equal time on a weekly rotation, the child will live predominantly with one party and spend more frequent time with the other party.

5. There will be no practical difficulty or expense in implementing that parenting regime once the mother returns to live on the Central Coast. Before the mother relocates back to the Central Coast the distance between the parties’ homes will preclude more frequent interaction between the child and the non-residential parent than weekly visits.

6. The parties both have the capacity to provide for the child’s physical and intellectual needs, but their respective capacity to provide for the child’s emotional needs is impaired by their propensity to indulge in family violence. The child’s exposure to such behaviour is likely to be seriously psychologically harmful to her.

7. The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be relevant to parenting proceedings if it is directed at a child or takes place in the child’s presence. Violence associated with a pattern of dominance by one parent over another, of which the child is aware, can be particularly insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hypervigilance from witnessing abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33-37]; Amador v Amador (2009) 43 Fam LR 268 at [95]).

8. Whilst ever the parties react towards one another with the disdain and discourtesy of the past they should be aware that they directly compromise the emotional health of the child. The continuation of such behaviour would certainly demonstrate an impaired attitude to the child and the responsibilities of parenthood.

9. The past use of illicit drugs by the parties remains a lingering concern, even though the parties now disavow any such concern. The Court is given little reason to be as confident as the parties that their drug use is no longer a material issue.

10. The mother admitted use of amphetamines as recently as December 2010, which she conceded caused her to act erratically.[27]

    [27] Family Report, pars 26, 127

11. The father admitted use of amphetamines until 2008[28] and use of cannabis as recently as April 2011.[29]

    [28] Family Report, par 131

    [29] Family Report, pars 46, 130

12. The parties both now deny use of illicit drugs, but there is little or no corroborative evidence in the way of urinalysis results.[30]

    [30] Family Report, pars 27, 46, 124

13. As the Family Consultant logically observed, the past drug use of the parties is a concern and both parties remain at risk of relapse.[31] Self-evidently, use of drugs or alcohol at times when the child is in the care and under the supervision of the parties is inimical to her physical and emotional safety. The child’s care should not be compromised by an intoxicated parent, nor should she be exposed to drug-addled parents as role models.

    [31] Family Report, par 142

14. The parties each agree to injunctions about their drug and alcohol use.[32] Orders are made restraining their use of alcohol. No order is made in respect of their illicit drug use. It is a criminal offence for them to use illicit drugs at any time, so it is pointless ordering them not to use illicit drugs only at times when they are responsible for the care of the child. They should not use drugs at all.

    [32] Exhibit ICL1, Orders 4, 9; Exhibit M5, Orders 5, 8, 9

Parental responsibility

1. Neither party nor the Independent Children’s Lawyer ever deviated from the proposition that the parties should be allocated equal shared parental responsibility for the child.

2. The past occurrence of family violence, a finding the Court is obliged to make on the evidence adduced, means that the presumption of equal shared parental responsibility does not apply (s 61DA(2)). That does not mean equal shared parental responsibility cannot be allocated – merely that it is not allocated presumptively. The issue is determined by reference to the child’s best interests.

3. I accept the mutual submissions of the parties and the Independent Children’s Lawyer that the parties should be allocated equal shared parental responsibility for the child. The Family Consultant holds the same opinion.[33]

   [33] Family Report, par 161

4. The father said that he perceived that he and the mother now communicated well when they exchanged the child. He said he was also capable of communicating civilly with the mother by telephone, text messages and over the internet. The father was not contradicted on that evidence. At least in recent times, the parties have demonstrated an ability to respect each other’s involvement in the life of the child. That ability is manifest from, among other things, their discussion and agreement about the implementation of an equal time residential arrangement for the child, the mother’s discussion with the father of her wish to relocate, the father’s willingness to countenance such relocation, and their joint attendance at medical appointments for the child.[34]

   [34] Mother’s affidavit, par 24

Living arrangements

1. Given the allocation of equal shared parental responsibility, the Court is obliged to consider the imposition of a residential regime for the child under which she lives with each party for equal time.

2. I reject such an outcome, despite the misguided agreement reached by the parties embracing such a parenting arrangement. It may suit the parties, but it certainly does not meet the best interests of the child.

3. As the Family Consultant eloquently observed:[35]

   At eight [now eleven] months of age [the child] is in the formative period for developing her primary attachment relationships. This time is also when [the child] will undertake the most rapid period of physical and emotional development that she will ever experience. One of the most important factors in ensuring that [the child] continues on a positive developmental trajectory throughout this period is the development and maintenance of a secure attachment relationship with her primary caregiver. This relationship is so important because children initially attune to one person and that person acts to co-regulate the child’s emotional and physiological arousal, thereby protecting them against excessive levels of stress, that go beyond young children’s limited coping abilities. In short, children depend on one primary attachment figure to make them feel safe whilst concurrently helping them to negotiate relationships and to facilitate an understanding of the world around them. Because of this reliance a young infant may become distressed if there is a prolonged absence of the primary attachment figure.

   What this means for [the child] in practical terms is that [the child] should live with one parent (the primary attachment figure) and spend frequent and shorter periods of time with the other parent in preference to lengthier and less frequent time with them. To be clear, [the child’s] attachment needs mean that a shared care arrangement is not in [the child’s] best interests at this stage.

   [35] Family Report, pars 137-138

4. That evidence was not the subject of any challenge at all and I accept it as correct.

5. Since it is not in the best interests of the child to live with the parties for equal time, at least in the near future, the Court is then mandated by the Act to consider a parenting arrangement under which the child lives primarily with one party and spends substantial and significant time with the other party.

6. Such a parenting regime is only possible when the parties live within reasonable proximity of one another, but presently they do not. They will soon do so, because the mother gave evidence that she will relocate her residence to the Central Coast within 6 months, and the father has no intention of relocating away from the Central Coast.

7. There is general agreement that the child should live primarily with the mother when the parties both live on the Central Coast and that in those circumstances the child should spend time with the father on a graduating basis, commensurate with her age and maturity. That proposal permits the child to spend substantial and significant time with the father, which outcome is both reasonably practicable to implement and serves her best interests.

8. The parties and Independent Children’s Lawyer agree that the time spent by the child with the father should begin as 3 separate days per week, between 10.00 am and 4.00 pm, with one of those visits to incorporate an overnight stay.

9. There is also general agreement that the regime should be expanded to incorporate a second overnight stay once the child attains 18 months of age in April 2012.[36] I accept that as a reasonable progression, notwithstanding that the Family Consultant tentatively recommended expansion in that manner once the child attained 12 months of age.[37] The child will attain that age very shortly in circumstances where the regime recommended by the Family Consultant in April 2011 has not been implemented in the interim period.

   [36] Exhibit ICL1, Order 5; Exhibit M5, Orders 6.2, 6.5

   [37] Family Report, par 162

10. The parties and Independent Children’s Lawyer also agree that once the child commences school the parenting regime should be changed so that the child spends time with the father each alternate weekend and for half of all school holidays.[38] No submission was made as to why the child’s time with the father should be so curtailed, particularly when the Family Consultant mooted the possibility of an equal time regime at that point in the child’s life.[39] In my view, there is no warrant for such curtailment and so the orders provide for the child to then spend more expansive time with the father, albeit still generally structured around an alternate weekend program.

    [38] Exhibit ICL1, Order 6; Exhibit M5, Order 6.6

    [39] Family Report, par 163

1. The complication which persists is the mother’s apparent refusal to immediately relocate her residence back to the Central Coast in order to permit orders of the type envisaged by the parties and Independent Children’s Lawyer to be implemented.

2. The mother’s resistance is incapable of rational and persuasive explanation – at least on the evidence adduced.

3. The mother confirmed that she moved from the Central Coast to Town 3 within the last two weeks. She rented accommodation in her sole name, entering into a lease of 3 months duration. The mother lives in that rented accommodation with her new partner and her eldest child.

4. The child accompanied the mother to her new residence, but the parties have adhered to the informal equal time living regime for the child that they previously agreed. For a full week of the less than two weeks the mother lived in Town 3 prior to trial the child lived with the father on the Central Coast.

5. There was no imperative for the mother to move so far away from the Central Coast. She, her partner, and her children were previously living with the maternal grandfather on the Central Coast. The mother left that accommodation of her own volition. The mother admitted there was no necessity for her to do so. The maternal grandfather also confirmed that the mother, her partner, and the children are welcome to return to live at his home at any time on the same conditions that previously prevailed. The mother paid no rent to the maternal grandfather, contributing only to the cost of food and utilities.

6. The mother desired her own residence. She looked for rental accommodation on the Central Coast, but found it beyond her means. She said the weekly rent on the Central Coast would be about $230, but in Town 3 it is $180. The mother conceded she would have been content to remain living on the Central Coast, subject to its affordability. But of course she has adequate accommodation available at the maternal grandfather’s home at even less cost than her accommodation in Town 3.

7. The mother agreed that all of her extended family and support network remain living on the Central Coast. In Town 3 she is beyond their support. The maternal grandfather agreed that he could not support the mother in Town 3 the way he could when she lives locally.

8. The mother also agreed that the father has a significant input with the care and supervision of the child and that her decision to move to Town 3 has compromised that situation.

9. It was directly submitted to the mother in cross-examination that it was in the best interests of the child for her to live on the Central Coast, impliedly in reasonable proximity to the father, and her disarmingly honest answer was “For [the child’s] case, yes.” She agreed that the Family Consultant’s recommendations about the appropriate parenting regime for the child could not be implemented if she remained living in Town 3 and the father remained living on the Central Coast.

10. The mother, her partner, and the father do not hold a driver’s licence. They cannot convey the child between them by car, without reliance upon third parties. There was no evidence that such resources were reliably available to them. Accordingly, they are each reliant upon public transport to travel and exchange the child between them.

11. In the circumstances, one wonders why the mother does not move back to the Central Coast immediately. The only disadvantage could be that the mother might bear liability for the rent for the remainder of the short residential lease whilst not occupying the property. Even if the mother cannot negotiate an early termination of the lease or reduction of the rent, or arrange a sub-lease, her liability for that sum of money is a trifling consideration by comparison with the best interests of the child.

12. In answer to the proposition that the mother would need time within which to relocate back to the Central Coast, the father logically observed in cross-examination “She got up there [Town 3] pretty quick. She can get back [to the Central Coast] pretty quick.” I agree with him.

13. Given the evidence suggests the mother is capable of an immediate return to live on the Central Coast, but she is resistant to do so for a period of months, the question arises as to what parenting arrangements should be made for the child during the period that the mother remains living away from the Central Coast.

14. The Family Consultant recommends strongly against a continuation of the equal time arrangement that the parties have adopted over the last few months. As already indicated, I accept her evidence that such a regime is contrary to the best interests of the child.

15. The child should live primarily with one parent and I am satisfied that parent can be the father, at least for the relatively short period until the mother relocates to the Central Coast. Presumably the child’s primary residence with the father will be an incentive for the mother to hasten her return to the Central Coast. The Independent Children’s Lawyer and the father both supported such an interim arrangement.

16. Although the Family Consultant recommended the child live primarily with the mother, that was in expectation that the parties would both remain living on the Central Coast, and the principal reason for that opinion was the development of the sibling relationship between the child and her older half-sister who lives with the mother.[40] There is really very little to differentiate the present level of attachment between the child and each of the parties, and each party is as willing and able as the other to promote the child’s relationships with each of them. The other limitations to the parties’ parenting capacity were relatively similar.[41]

    [40] Family Report, pars 136, 150, 154, 157

    [41] Family Report, pars 140-149

17. There is consequently no overt reason why the father cannot be the primary residential carer for the child for the period up until the mother relocates back to the Central Coast, which period is likely to be relatively short. The father was designated the primary carer of the child by the orders previously made in January and March 2011, until the parties moved consensually to an equal time arrangement in April 2011. An order is made that the child shall live with the father until the mother relocates back to the Central Coast.

18. In contemplation of such an interim arrangement, the mother proposed that the child spend time with her each weekend so as to achieve the frequent interaction so strongly recommended by the Family Consultant. The mother did not envisage the ability to travel back to the Central Coast more than once weekly for that purpose. The mother was concerned to retain some semblance of stability for her other child, who now attends pre-school twice per week in Town 3. The orders accommodate the mother’s proposal for weekend visits.

19. Those are the most reasonably practicable orders that can be made in the child’s best interests whilst the mother cannot or will not return to the Central Coast. It may be a disincentive for the mother to return to the Central Coast and may induce her to stay in Town 3 if the child is left in her primary care whilst she lives in Town 3. That would increase the likelihood of further litigation between the parties over the child.

20. The orders arbitrarily impose a geographical radius of 35 kilometres from the Town 1 post office as the area within which the mother should reside if the child is to live with her. The radius is arbitrary in the sense that the distance was not mentioned in evidence or submissions, but it is a radius which incorporates the whole, or at least most, of the Central Coast region. The mother submitted for imposition of a radius of 70 kilometres,[42] in the absence of any evidence as to why, but such an order would then permit the parties to reside up to 140 kilometres apart. It would be impossible, or at least not reasonably practicable, to implement the agreed residential regime in those circumstances. The radius proposed by the mother was therefore untenable.

    [42] Exhibit M5, Order 4

21. The restrictions upon the parties’ respective residential options are no more restrictive than is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Harnett (No 10) (2007) FLC 93-350).

Other orders

1. The father conceded that he has not participated in a post-separation parenting program, but was content to do so. There was no evidence that the mother had attended such a program and she was not asked, but she did propose an order that she do so.[43] Both parties are therefore ordered to do so.

   [43] Exhibit M5, Order 18

2. The Independent Children’s Lawyer proposed an order that the parties also participate in the “…” early intervention program,[44] as recommended by the Family Consultant.[45] No order is made for two reasons. Firstly, the Court has no power to make such an order. The Court can only unconditionally order the parties to attend post-separation parenting programs (s 65LA) and the “…” program is not a post-separation parenting program. Secondly, as was pointed out by the Family Consultant, voluntary participation is one criterion for eligibility to attend the program. The notation proposed by the mother[46] was of no utility, because the father was not asked about his intention to attend such a program when he was cross-examined.

   [44] Exhibit ICL1, Order 10

   [45] Family Report, par 166

   [46] Exhibit M5, Notation 21

3. The father proposed to the Family Consultant, but not the Court, that the mother be restrained from permitting the child to come into contact with the mother’s new partner.[47] The Family Consultant suggested that the alleged danger be investigated,[48] but neither party chose to adduce any evidence from or about the mother’s partner. On the available evidence, there is no reason for such an injunction and so none is imposed.

   [47] Family Report, par 18

   [48] Family Report, par 164

4. As already noted, family violence orders are in existence. One protects the father from the mother, and the other protects the mother from the father. The child is protected under both orders.

5. One part of each family violence order is inconsistent with the existing interim parenting orders, the current informal parenting arrangement reached by the parties, and also the final parenting orders proposed by the parties and the Independent Children’s Lawyer in these proceedings.

6. Paragraph 5 of both family violence orders provides as follows:

   The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.

7. The “defendant” is of course the party respectively bound by the order.

8. The “protected persons” are, in each case, the party protected by the operation of the order and the child.

9. The family violence orders preclude the parties from contacting one another to discuss issues relevant to the child because they are only permitted to contact one another at all via their legal representatives. Although the orders permit the parties to communicate directly pursuant to orders made under the Act that is only for the limited purpose of “counselling, conciliation, or mediation”. The parties can communicate directly in writing, but only by agreement, and the parties would breach the family violence orders by contacting one another in order to try to reach such agreement.

10. The family violence orders even preclude the child from living, spending time, or communicating, with the parties. That is because the child is designated as a protected person under each of the orders, and the parties are bound by the same restrictions upon their interaction with the child as they are with one another.

11. The literal terms of the family violence orders are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence orders and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.

12. Consequently, the following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:

    a)The parenting orders are inconsistent with paragraph 5 of the family violence orders because they require the mother and father to contact and approach one another, and for the child to approach and contact each parent.

    b)It is necessary to make parenting orders which are inconsistent with paragraph 5 of the family violence orders in order to promote the child’s best interests.

    c)The child’s best interests are promoted by her living, spending time, and communicating, with the parties. That will be aided by the mother and father having contact with one another, in person, by telephone, and in writing, to ensure that occurs.

    d)The parenting orders set out how the child is to live, spend time, and communicate with, the parties.

    e)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), 3, 11, or 12 of the two family violence orders, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence orders may be consistently obeyed.

    f)Contravention, variation, or revocation of the family violence orders will be dealt with by prosecution or application in the Local Court of NSW.

    g)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.

13. The parties and Independent Children’s Lawyer mutually submitted that the parties should exchange the child between them at their homes, notwithstanding that the family violence order made against the mother in favour of the father on … January 2011 precludes the mother from entering the premises at which the father lives. Accordingly, although orders have been made consistently with the joint proposal, any changeovers of the child at the father’s home will need to occur outside the boundary of that property whilst ever that family violence order remains in force in those terms.

14. The orders require the parties to participate equally in the travel necessary to exchange the child between them, except while the mother remains living in Town 3. In those circumstances the mother must collect the child from and return the child to the father at his residence. That should not be an undue burden because the mother will be able to remain on the Central Coast over the weekend with the child. She is able to use the maternal grandfather’s home as a base. There is no need for her to return with the child to Town 3, as she could do if the orders required the father to collect the child from the mother at her residence at the conclusion of the time spent by the child with her. It would not be in the child’s best interests to be subjected to so much travelling.

15. The parties and Independent Children’s Lawyer mutually proposed the imposition of orders requiring the parties’ participation in dispute resolution in the event of future disagreement about interpretation, implementation, or enforcement of the final parenting orders.[49] I see no need to make such orders. The Act and Rules already comprehensively require the parties to genuinely exhaust dispute resolution mechanisms before they resort to litigation, without the need for an order telling them to do so.

    [49] Exhibit ICL1, Orders 17-18; Exhibit M5, Orders 19-20

16. The other orders either reflect the mutual proposals of the parties and Independent Children’s Lawyer, or could not be the subject of sensible controversy.

17. I am satisfied that the orders set out at the commencement of these reasons reflect the child’s best interests.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Friday, 5 August 2011.

Associate: 

Date:  5 August 2011