Brown and Bunson

[2007] FamCA 800

FAMILY COURT OF AUSTRALIA

BROWN & BUNSON [2007] FamCA 800

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Best interests of child

APPLICANT: Mr Brown

RESPONDENT: Ms Bunson

FILE NUMBER: (P)BRF 467 of 2005

DATE DELIVERED: 8^th August 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hon Justice Carmody

HEARING DATE: 9, 10 and 11 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodges

SOLICITOR FOR THE APPLICANT: Smith and Stanton

COUNSEL FOR THE RESPONDENT: Mr Dick

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

Orders

1. That the child, B born in August 2002 live with the mother and spend time with the father as agreed or :

   (a)       each alternate week from 4.00 pm Thursday until 9.00 am Monday with changeover to take place at the child’s pre-school/day care;

   (b)       from the commencement of the child’s prep year in 2008 from after school Thursday until before school Monday with changeovers to take place at the child’s school.

2. The live with order in paragraph (1) is conditional upon the mother not misusing drugs or alcohol while B is her care.

3. All pre-school and gazetted school holidays be equal shared on agreed terms.

4. Unless otherwise agreed, changeovers take place at the child’s day care, school or inside the R Police Station.

5. The parents to have equal shared parental responsibility and must consult each other in a genuine attempt to reach consensus about the time B is to spend with each of them on occasions and events that are of particular significance to the child or special significance to each parent such as birthdays, mother’s day, father’s day, the parents’ birthdays and Christmas Day etc.

6. The parents to encourage and facilitate telephone communication with B and the other.

7. The parents to keep each other informed of any change of contact phone numbers or addresses and keep the other apprised of any significant   information in relation to the child’s care, welfare and development.

8. Neither parent to denigrate or allow the denigration of the other in the presence or hearing of the child.

9. Any disputes about the terms or operation of this order, parental responsibility issues, changes to the order or any aspect of the care, welfare or development of B, including holiday contact arrangements or future overseas travel, are to be resolved in consultation with a family dispute resolution practitioner nominated by Relationships Australia or Kinections.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Brown & Bunson.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: (P)BRF467 of 2005

Mr Brown

Applicant

And

Ms Bunson

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting orders application by the father and the mother as set out in  their summaries of argument.  The proceedings have a long and protracted history.  Conflict between the parties is high and communication poor.  The parties’ daughter, B, who turns 5 in August this year, is the child in the middle.

2. At 46 the father is currently 16 years the mother’s senior.  The parties met and commenced cohabitation in 1997;  married in 1999 and separated in 2005 but continued to maintain a sexual relationship for 6 months or so.

3. The father had a de facto partner from the end of 2005 until they decided to go their separate ways just before trial.  During that period the father lived at his de facto’s residence with her three school age children in a stable family situation. 

4. The father has three children from a previous marriage aged between 18 and 22 but has not had any significant contact with them in five years. 

5. He currently lives alone in a one bedroom house at H under uncertain tenancy arrangements.  He is not committed to staying there in the long term and could just as easily move somewhere else.

6. The mother lives with the maternal grandmother at M.  She prefers to reside south of Brisbane because of what she describes as police harassment on the northside. 

7. In February 2004, B was ordered to live week about with each parent.  Changeovers take place at the R Police Station.  Despite some initial handover problems that arrangement worked well enough with the help and support of the father’s de facto.  However, it is no longer viable because of the distance between the households and the mother’s reliance on public transport to get around.  There is also a question mark over the father’s parenting capacities without a partner in his life.

8. The father’s case is based on expressed concerns for the physical, emotional and moral welfare of the child because of the mother’s post-separation history of dysfunctional behaviours and her current employment as a sex worker.  He says, and she does not really deny, that over the last 2½ years the mother has harassed him, been both the victim and perpetrator of assaults, refused to submit to breathalyser testing on three occasions, acted impulsively, abusively and recklessly under the influence of alcohol, breached a domestic violence order, had no stable residential address and lost her driver’s licence for 12 months in January 2007. 

9. She was also ordered to 12 months intensive correction in July 2007 for breaching that order, assaulting police, wilful damage and dangerous driving. 

10. The mother says the father’s alleged safety and welfare concerns even if genuine are either unreasonable or exaggerated for tactical advantage.  It is noted that there has been no intervention by police or departmental officers and that Ms L reports at 7.23 of her last report, that there does not appear to be any substantiated significant risks of harm to B in the mother’s care, notwithstanding her current profession.

11. The father on the other hand has an admitted tendency to violence in relation to adults and children in his care but, he says,  not to the extent alleged by the mother.  His undisputed history of domestic violence is set out at pars 5.11 to 5.33 of Ms L’s first report.

12. The mother asserts and he denies that B was exposed to family violence in their relationship.  There is, however, strong evidence of domestic violence and excessive disciplining in his first marriage.  The significance of this evidence has diminished over time and because of changed dynamics.   

13. However, as the family reporter Ms L points out, the thing about the father’s violent propensities is not the physical threat he represents to a particular victim, as much as it shows a method of resolving conflict through violence. A continuing pattern of violence, of course, would put the child at risk of harm.  The father has not produced evidence to clearly show that he has adequately dealt with it even though he has also attended an anger management course since separation.  It is noted however that the father currently has equal shared responsibility for and time with B which has apparently been unremarkable. 

14. Dr C reports uncertainty about what benefit, if any, the father had gained from previous participation in either a men’s group or the anger management program.

15. As to the mother, on the other hand, Dr C notes that as a result of counselling through Relationships Australia, she appears to have been able to strengthen her resolve and slowly come to the terms with the loss of her marriage and appears, over time, to have slowly “though incompletely” matured. 

16. When B was interviewed by the family reporter, Ms L, a social worker, in June 2007 for the purposes of the third of three reports dating back to 2005, she expressed no definite preference for either household.  However, according to Par 7.16 of Ms L’s second report dated 4 February 2006, B was, although strongly attached to both parents, continuing to “… have a strong preference for her mother”  and  “… clearly is not coping with significant periods away from her mother.”   I infer from the relevant passages of Ms L’s third report, especially pars 6.11, 6.15, 6.16, 6.19 and 6.22 that the child’s primary attachment is to her mother.  This was reinforced by Ms L in cross-examination.

17. This is a difficult case.  Despite their shortcomings, both parents have a meaningful relationship with their daughter and she is lovingly attached to both of them.  She has spent equal time in the care of each in the last six months.  These arrangements appear to have worked satisfactorily despite the parents’ mutual hostility.

18. The relevant impact of the recent collapse of the father’s de facto relationship on B’s relationships and household preferences is unknown. However, it is noteworthy that at par 7.17 of her final report, Ms L suggested that the father’s ability to provide consistency for B, particularly in the context of her schooling, was heavily dependent on the stable and functional de facto relationship. 

19. The father’s capacity to care for B on a sustained, long term basis as a single parent is untested.  He does not have a demonstrated history of caring for children for significant periods on his own and for the last 25 years has been in an intimate relationship.  His long-term ability to cope and manage his anger problems alone with equal shared care is also untested.   A finding of substantiated risk of physical and emotional harm to B due to the father’s chastisement methods was made by the Department of Child Safety on 14^th April 2005.    Par 14 of the father’s affidavit of 18^th June 2006 also raises some ongoing concerns in this area.

20. Both parties have demonstrated an unwillingness or inability to facilitate and encourage B’s relationship with the other, but appear to have recently gained greater insight into the need to do better in the future in this regard.  The father has been found to have contravened previous parenting orders by not allowing the mother to spend time with B on four separate occasions in 2006. 

21. The personal and future living circumstances of both parties are currently uncertain but the mother seems to offer a more stable and better standard of accommodation at M than the father does at H. 

22. The mother is currently working in a brothel as a receptionist but says she plans a career change in the near future.  The father earns an inconsistent level of income as a tradesman and pays minimal child support. 

23. The mother’s domestic situation has remained steady since January 2007 while the father’s has changed markedly, especially in recent times.

24. The mother has transportation limitations due to her loss of licence and experiences practical difficulty and expenses in travelling from M to Brisbane for changeovers.

25. Both parents’ ability to meet the relevant needs of the child are compromised, not only by their own dysfunctional relationship but also by personality vulnerabilities.

26. The case is a finely balanced one. Taking into account the expert witnesses, particular Ms L, the child’s apparent closer attachment to and preference for being with the mother, the father’s stricter than usual approach to disciplining such a young child, the uncertainty surrounding his current living arrangements, the recent breakdown in his de facto relationship, his admitted past violence, the mother’s mobility restrictions, the distance between the households, and despite the mother’s undisciplined post-separation conduct, including breaching traffic regulations and restraining orders, and on the basis that she complies with a condition to not misuse drugs and alcohol, I have decided that, on balance, B’s best interests would be promoted at this stage of her development by living primarily with the mother at M and spending substantial and significant time from after pre-school on Thursdays to before pre-school on Monday in alternate weeks, subject to appropriate and safe changeover arrangements being agreed.

27. In cross-examination, Ms L expressed the clear view that the risk of alcohol and drug mis-use by the mother or her involvement in the sex industry, while they have to be resolved, are not the sort of issues that would say she should not have care of this child.  She thought that while the mother was not the most ideal person in the world, she was extremely committed and would do what was needed to have as much involvement in the child’s life as possible. 

28. The mother clearly has some personality weaknesses and has not always acted responsibly since separation.  She is obviously prone to abusing alcohol. However, I am reasonably satisfied that although some of her past behaviours cannot be excused, they have to be judged in the context of the breakdown of a co-dependant and volatile relationship with a significantly older man.

29. Ms L noted that the mother’s behaviour in the last two years or so, since separation, was not characteristic of or definitive of her whole adult behaviour.

30. Ms L flatly rejects the suggestion made on behalf of the father that the mother’s disfunctionality post-separation suggested unfitness as a mother.  Her observations led her to conclude that the mother had not acted dangerously or inappropriately when the child was in her care, had a very good relationship with B, and used her best endeavours to be a good mother to her.

31. Ms L sees the mother’s deteriorating functioning as alcohol-related and recommends the mother give an undertaking or the court made an order   obliging her not to drink alcohol was a highly desirable risk mitigation step. She also suggested that once the proceedings were resolved the mother needed to embrace intensive interventions, including in relation to drugs and alcohol.

32. I formed much the same view of the mother as Ms L did.  She admittedly lied about her employment at family interview, but this is explicable, in my view, on the basis that it was just too difficult for her to admit being a prostitute in the climate of family litigation.  She obviously should have been truthful but lying on this point does not, in my view, disqualify her as an adequate parent. 

33. It is difficult to know for sure which of them is in the best position to offer the best primary care for this young child.  There are risks of poor parenting and emotional disturbance in both households.  Perhaps the least worst option would be to continue the status quo and distribution the welfare risks evenly but that is not viable for practical reasons.  However, the distance between the households, the mother’s transportation problems and the unwillingness of either party to move closer to the other for the benefit of the child makes this untenable. 

34. If the child does not live with the mother it will probably limit the amount of contact she has with her. This would not be in the child’s best interests.  The father has a capacity to travel to M when he is not working to collect B; whereas the mother will placed at severe disadvantage in being forced to travel to H for handovers on a long-term basis.

35. As I said in the course of the trial, while there is no preference for mothers over fathers as parents, the gender and age of the child concerned is not irrelevant.  Nor is her current stage of development. 

The passport issue

1. The father wishes to travel overseas with the child but does not have any firm plans at the moment.  The issue was not fully explored at trial, and I am not satisfied on the information currently available that the proposed travel is in the child’s best interests.  If the parents can’t agree with or without professional assistance then application can be made to the Federal Magistrates Court for orders for specific travel.

proposed parenting orders

1. Having regard to the objects and principles, s 60B, the requirement in 60CA and criteria in 60CC(2) – (3) and the provisions of s 60CG of the Family Law Act 1975 (Cth), I propose to order -

   (1)That the child, B born in August 2002 live with the mother and spend time with the father as agreed or:

   (a)each alternate week from 4.00 pm Thursday until 9.00 am Monday with changeover to take place at the child’s pre-school/day care;

   (b)from the commencement of the child’s prep year in 2008 from after school Thursday until before school Monday with changeovers to take place at the child’s school;

   (2)The live with order in paragraph (1) is conditional upon the mother not misusing drugs or alcohol while B is in her care;

   (3)All pre-school and gazetted school holidays be equal shared on agreed terms;

   (4)Unless otherwise agreed, changeovers take place at the child’s day care, school or inside the R Police Station;

   (5)The parents to have equal shared parental responsibility and must consult each other in a genuine attempt to reach consensus about the time B is to spend with each of them on occasions and events that are of particular significance to the child or special significance to each parent such as birthdays, mother’s day, father’s day, the parents’ birthdays and Christmas Day;

   (6)The parents to encourage and facilitate telephone communication with B and the other;

   (7)The parents to keep each other informed of any change of contact phone numbers or addresses and keep the other apprised of any significant   information in relation to the child’s care, welfare and development;

   (8)Neither parent to denigrate or allow the denigration of the other in the presence or hearing of the child;

   (9)Any disputes about the terms or operation of or changes to this order, parental responsibility issues or any aspect of the care, welfare or development of B, including preschool holiday contact arrangements or future overseas travel, are to be resolved in consultation with a family dispute resolution practitioner nominated by Relationships Australia or Kinections.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody

Associate: 

Date:  8^th August 2007