Cole and Chapman
[2009] FamCA 650
•28 July 2009
FAMILY COURT OF AUSTRALIA
| COLE & CHAPMAN | [2009] FamCA 650 |
| FAMILY LAW – CHILDREN – Whether the presumption of equal shared responsibility is rebutted – whether it is in best interests of the child that the mother be granted sole parental responsibility – whether periods of time to be spent with the father be supervised – change of surname of the child |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA(1) (2) & (4), 68 |
| Re Andrew (1996) 20 Fam LR 538 B and B, Family Law Reform Act 1995 (1997) FLC 92-755 Flangan & Handcock (2001) FLC 93-074 U v U [2002] FLC 93-112 Bookhurst & Bookhurst [2009] FamCA 6 Koldsjor & Addington [2009] FamCAFC 21 |
| APPLICANT: | Mr Cole |
| RESPONDENT: | Ms Chapman |
| FILE NUMBER: | SYC | 69 | of | 2007 |
| DATE DELIVERED: | 28 July 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 13 - 15 July 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | T Allen |
| SOLICITOR FOR THE APPLICANT: | Lamrocks Solicitors |
| COUNSEL FOR THE RESPONDENT: | E Clifton |
| SOLICITOR FOR THE RESPONDENT: | David H Cohen & Co |
Orders
That the mother have sole parental responsibility in relation to the child of the parties, N born … June 2005 (“the child”) subject to her consulting with the father in relation to all or any of the following major long-term issues as the need arises and prior to her making any decision in relation to such issue or issues:-
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
And the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That by consent, the child live with the mother.
That until the child attains the age of 6 years the father may spend time with the child supervised by the paternal grandmother, …, as follows:-
(a)Each alternate Saturday from 10.00am to 5.00pm preferably to take place at the same time that the father spends time with his two daughters B and L to commence on Saturday 1 August 2009.
(b)Each alternate week on Thursday from 3.30pm to 7.30pm to commence on Thursday 6 August 2009.
(c)From 12 noon Christmas Eve until 12 noon Christmas Day during each even numbered year and from 12 noon Christmas day until 12 noon Boxing Day during each odd numbered year.
(d)In the event that the child’s birthday falls on a week day or a weekend, for no less than 4 hours at a time agreed between the parties when the child is not otherwise spending time with the father
(e)On Father’s Day, should it fall on a weekend when the child is not otherwise spending time with the father from 10.00am until 5.00pm that day.
That upon the child attaining the age of 6 years the father may spend unsupervised time with the child as follows:-
During school term
(a)Each alternate Friday from the conclusion of school until Sunday 6.00pm (preferably to take place at the same time that the father spends time with his daughters B and L) and the father shall ensure that the child attends and participates in all sport and other reasonable extracurricular and social activities, the first occasion of such alternate weekend periods to commence on the first Friday in each new school term.
(b)Each alternate week on Thursday from 3.30pm to 7.30pm to commence on the Thursday which falls in the second week of the new school term.
(c)For the periods referred to in Orders 3 (c), (d) and (e).
During end-of-term school holidays
(d)For the first half of such school holiday periods, other than following the last school term, commencing at 10.00am on the first day of such periods and concluding at 5.00pm on the last day of such periods in each even numbered year and for the second half of such school holiday periods in each odd numbered year provided that the period of time which the father may spend with the child during the latter school holiday period will conclude no later than 5.00pm on the last Saturday prior to the commencement of the next school term.
(e)During the school holiday period following the last term of the school year, for each alternate week commencing with the first week in each even numbered year and the second week in each odd numbered year provided that the period of time that the father spends with the child during such school holiday period conclude no later than 5.00pm on the last Saturday preceding the commencement of the new school term and to increase to longer block periods as agreed between the parties.
That Orders numbered 3(a) and 4(a) are suspended on Mother’s Day in the event that it falls on a day when the child would be otherwise in the care of the father and the mother shall have the care of the child on Mother’s Day from 10.00am until the commencement of the next period of time that the child is due to spend with the father.
That for the purpose of changeover of the care of the child from one party to the other, unless otherwise agreed upon between the parties the mother shall deliver the child to the father at the commencement of that time.
That the father may spend such alternative or other periods with the child, whether supervised or unsupervised, as the parties may agree upon from time to time.
That by consent, the father may communicate with the child by telephone between 6.00pm and 7.00pm on each Monday and Wednesday, facilitated by the father telephoning the child by calling the mother’s mobile telephone number and, in the event of the child not being available to speak to the father, the mother shall ensure that the child returns the father’s call as soon as possible that evening.
That by consent, each party is restrained from denigrating the other party or any member of the child’s extended family or household in the presence of or hearing of the child and shall refrain from questioning the child in relation to the other parent and his or her respective household.
That each party shall use his or her best endeavours to ensure that no other person conducts himself or herself in the manner referred to in Order 9.
That by consent, each party shall keep the other advised immediately of any medical emergency involving the child whilst he is in his or her care and each of the parties shall use their best endeavours to attend any treating medical practitioner in relation to the child’s asthma or any other major medical ailment or condition.
That by consent, each party shall keep the other informed of his or her current residential address, mobile telephone and landline numbers.
That by consent and without admissions, the father shall not consume alcohol within 12 hours prior to and during the period that the child spends time with him.
That by consent, the father promptly provide to the child during the time that the child spends with him, all prescribed medication and medical treatment required by the child including, but not limited to, Ventolin and Atravent and Polaramine.
That by consent, the father inform the mother immediately by telephone or text message if the child is experiencing any signs of distress with his breathing and immediately contact an ambulance if the child does not respond to his medication.
That by consent, the father be and is hereby restrained from driving any motor vehicle containing the child until he obtains a valid drivers licence.
That by consent, the father be and is hereby restrained from physically chastising the child.
That by consent, when the child is under the father’s care, the mother is at liberty to call the father’s mobile or the supervisor’s mobile telephone at times convenient to the parties.
That the father’s application for an order for change of the child’s surname is dismissed.
That all other outstanding applications for parenting orders are dismissed.
Liberty to apply to discharge, vary or suspend any of the parenting orders made this day upon 7 days’ notice being given in writing.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Cole & Chapman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 69 of 2007
| MR COLE |
Applicant
And
| MS CHAPMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
In these contested parenting proceedings the applicant Mr Cole (“the father”) sought orders in accordance with his application filed 5 January 2007. The application was subsequently amended unopposed by the minute of orders sought by him which became Exhibit 8.
The respondent Ms Chapman (“the mother”) sought orders in accordance with her response filed 23 February 2007. That response was also amended unopposed as reflected in the minute of orders sought by her being Exhibit 4.
The child the subject of these proceedings is the parties’ son N, four years of age having been born in June 2005 (“the child”). The child primarily lives with the mother.
The father is 38 years of age and is unemployed. He lives in a self-contained granny flat on the premises owned and occupied by the paternal grandmother and the father’s step-father (who for convenience will be referred to as “the paternal grandfather”).
The mother is 32 years of age and engaged in home duties. The mother lives in a three bedroom house in which others reside. They include the child, her children J (the child of a prior relationship) and A together with A’s father Mr K.
J is 12 years of age having been born in September 1996.
A is about eigth months old having been born in November 2008.
The parties cohabited for a period of about three years which commenced in 2002 until they finally separated, within days of the child’s birth in June 2005.
The parties did not marry.
The father has two daughters by a prior relationship namely:-
(1)B, 13 years of age having been born in August 1995 (“[B]”);
(2)L, 11 years of age having been born in April 1998 (“[L]”).
Historical Background
The following are further brief relevant historical matters.
In September 1990 in the Local Court the father was convicted of dangerous driving, placed on a good behaviour bond for two years and disqualified from holding a driver’s licence for two years. He was also found guilty of driving whilst unlicensed and negligent driving.
In January 2000 in the Local Court the father was convicted of driving with “high-range PCA”, fined $800, ordered to pay court costs and disqualified from holding a licence for 18 months.
In May 2002 in the Local Court the father was convicted of driving on a road whist an unlicensed driver, fined $2500, disqualified from holding a driver’s licence for two years commencing 24 June 2002 and ordered to carry out community service for 250 hours.
On or about 13 December 2005 in the Local Court an interim apprehended violence order was made against the father for the protection of the mother.
On 16 January 2006 the father was convicted of common assault and fined $500. He was found guilty of assaulting the mother.
On 1 February 2006 in the Local Court the apprehended violence proceedings were dismissed following the mother withdrawing her complaint.
On 5 March 2007 interim parenting orders were made by Judicial Registrar Loughnan providing for the child to live with the mother and to spend time with the father from 2.00pm to 6.00pm each Saturday and other times as may be agreed and supervised by relatives of the father.
On 4 May 2007 I heard the first day of the Less Adversarial Trial. A family report was ordered and procedural orders made.
On 26 September 2007, following the release of the family report and after hearing submissions I noted the issues for determination and made directions in relation to the filing and service of further affidavits as well as other matters. I fixed the further hearing of the proceedings to take place for three days commencing at 10.00am on 10 March 2008.
On 10 March 2008 I made the following orders by consent:-
1.Interim parenting orders and notations (“the interim orders”).
2.That the proceedings be adjourned for mention before a Registrar on 15 September 2008 “for the purpose of the Registrar being informed whether or not the parties have reached agreement on a final basis and if necessary to make further directions”.
The interim orders provided for the child to continue to live with the mother and to spend time with the father each Thursday from 3.30pm to 7.30pm; each alternative Friday (to coincide with the father spending time with his daughters B and L) from 5.00pm Friday to Saturday 2.00pm for the first three months and thereafter to be extended to 5.00pm; the paternal grandmother to collect the child from the mother’s residence on Friday 5.00pm and the mother to collect the child from the father’s residence upon the conclusion of the time that he spends with the father on Saturdays.
It was also noted that the parties had the intention of reviewing the periods of time that the child spends with the father after a further six months.
On 20 October 2008 I made further directions.
On 28 January 2009 Judicial Registrar Loughnan ordered that the Family Consultant, Ms E, prepare an updated family report.
On 26 May 2009 I made further directions and fixed the continuation of the trial for three days commencing at 10.00am on 13 July 2009. The issues for determination were noted.
The Primary Issues
In these proceedings there is no issue that the child should continue to live with the mother and spend periods of time with the father.
The primary issues, excluding related issues and questions of fact, for the purpose of making parenting orders that are in the best interests of the child as required by s.60CA are as follows:-
(1)Whether the presumption of equal shared parental responsibility has been rebutted on one or other of the grounds of family violence (s.61DA(2)(b)) or “the best interests of the child” (s.61DA(4)).
(2)In the event that the answer to (1) is in the affirmative, whether an order for sole parental responsibility be granted to the mother as sought by her.
(3)The extent of the periods of time that the father may spend with the child; whether such periods be supervised and if so the terms that should apply. The father contends that the periods of time as sought by him be unsupervised.
The parties agreed that in the event that it was considered in the best interests of the child that an order that the periods of time that the father may spend with the child be supervised, then the supervisor shall be the paternal grandmother. The paternal grandmother gave oral evidence of her understanding of and willingness to fulfil that role. Counsel for the father informed me that a written undertaking would be completed by the paternal grandmother and furnished to my Associate by 5.00pm on 20 July 2009. That has occurred. The undertaking is marked Exhibit 9.
A further issue on the application of the father that requires determination is whether or not orders should be made enabling the child’s surname to be changed from his current surname of “Chapman” to “Cole”.
Relevant Principles
Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the 2006 legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child.[2]
[2] Ibid.
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
[3] Ibid.
RELEVANT MATTERS PURSUANT TO SECTION 60CC
Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[4] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[4] Section 60CC(1).
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[5]
[5] Section 60CC(2).
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[6]
[6] Section 60CC(3).
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.
Views expressed by the child and relevant factors
Due to the child’s very young age, such evidence as there may be of his views cannot attract any weight. However, there is no issue that he has a loving relationship with each of the parties and a close and fond relationship with the maternal grandmother, the paternal grandparents, J, A and Mr K.
Accordingly, I infer that the child has a desire to spend time with each of those referred to in the last paragraph.
The nature of the relationship of the child with each of the parties and other persons
There is no issue that the child has a relationship with the parties and other persons to whom I have referred in paragraph 31.
The mother has been the primary carer of the child since his birth. During that time, the child has been in the care of the father for varying periods during the day, not always regularly, and occasionally a single overnight stay.
The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent
The father has demonstrated the appropriate willingness and ability. He consents to an order that the child continue to live with the mother.
The mother has consistently acknowledged the loving relationship between the father and the child and has demonstrated her willingness and ability to facilitate and encourage it provided that she is satisfied that the child will be safe in the father’s care and his home environment.
The likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the child has been living
The significant changes in the circumstances of the child that are proposed are in accordance with Exhibit 4. The mother proposes that the periods of time that the child spends with the father be supervised and that such periods be extended to overnight only upon the child attaining the age of eight years.
The likely effect of such proposals is that it may limit the continued development of the relationship between the father and the child as he will not have the parental involvement with the child with the evening meal and breakfast, as well as settling him to sleep and other activities that they may engage in together.
In addition, a likely effect may be that the child is placed in a safer environment through supervision by the paternal grandmother. However, this is a matter which I will make the subject of my conclusion subsequently in this judgment.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is relevant practical difficulty and expense in relation to the child spending time with the father. That is caused by the distance between the residences of each of the parties, the driving time and the petrol expense which is incurred by the mother.
Neither of the parties is in employment. The father receives Centrelink benefits. Implicitly the mother also receives government benefits. The father does not pay child support. He has provided cash monies to the mother from time to time to cover petrol expenses. He offers to continue to do so at the rate of $50 per month until such time as he obtains his driver’s licence when he will be able to share in the travel arrangements of the child between the parties.
The capacity of the parties and any other person to provide for the needs of the child including emotional and intellectual needs
There is no issue in relation to the father’s capacity to provide for the needs of the child so far as the features and facilities of the premises that he occupies. In that regard he has the exclusive use of a self-contained granny flat at the premises of the paternal grandparents and has free access to and use of all the features of their home.
An important issue is whether he has the capacity to provide for the safety of the child and the child-focused commitment to personally exercise that commitment, rather than leaving it to one or other of the paternal grandparents, or both or either of B and L. The father’s case is that he has the appropriate capacity and commitment.
The mother contends that there have been instances when the father has failed to exercise appropriate parental supervision of the child, exposing him to danger.
The mother claims that on 24 April 2008 whilst at the father’s premises she noticed that the roof of the bedroom used by B and L had collapsed near to floor level and that electric wires were exposed and a light bulb hanging at a child’s reach. Implicitly the reference to the “roof” is the ceiling. The father informed the mother that the damage was done in December 2007. The father was dismissive of the mother’s concerns of the danger posed to the child in that situation. His attitude was the same in relation to the mother querying the lack of safety of a side fence comprised of a rusty piece of sheet metal which had collapsed down the side of the house which the child had tried to climb.
The mother claims that on 1 May 2008 upon arriving at the paternal grandparent’s premises she noticed B and L playing at the front with their bikes and she asked the father not to let the child play out the front without the father being there to supervise. The mother left but returned a few minutes later as she felt uneasy at the possibility of lack of supervision of the child. The mother then noticed that the child was out at the front of the premises with L alone who was on her push bike. The father was not present nor could he be seen. Upon the mother parking beside the father’s house the child ran towards her car. L rode away. The mother picked the child up and walked to the front door. The father came to the door and the mother then spoke to him. Upon the mother pointing out to the father that she had observed the child at the front with no adult supervision, the father allegedly replied
“Mind your own business, the girls would be looking after [the child] by themselves. [The child] is allowed to go to the neighbour’s house down the road by himself to play. You should grow up.”
The child then ran outside and upon the mother alerting the father to the child’s whereabouts he allegedly replied
“It’s alright the girls are out there.”
The mother observed the child run towards the road and yelled at him to stop. The mother also called out to B to grab the child which she implicitly did. The mother ran to the child. The father followed her and took the child and said to the mother
“If you do not leave here I am going to call the police.”
Later that day the mother and the maternal grandmother returned to collect the child. No one else was present except for the father and the child. The father invited them in. It appeared to the mother that the father had been on the lounge watching television. Upon the mother inquiring as to the whereabouts of the child, the father told her that he was
“In the bath.”
The mother and the maternal grandmother entered the bathroom and observed that the child was in a half-full bath with a heater plugged in which was stationed on the bathroom floor. The mother took the child out of the bath, dried and clothed him and said to the father that
“This is extremely dangerous, what kind of person leaves a child alone in the bath with a heater plugged in.”
The mother and the maternal grandmother took the child and left.
The maternal grandmother in her affidavit corroborates the allegations of the mother so far as the incident on 1 May 2008 is concerned in relation to the child being alone in the bath with a heater having been plugged in and left standing on the bathroom floor.
During the course of her oral evidence the mother also claimed that there had been an incident of the child being hit on the head by a blind whilst in the father’s care. The father denied any knowledge of that incident.
The mother also alleged that during the period of cohabitation she was forced to grab L from the swimming pool where she was in danger, in circumstances the father was with friends in the shed smoking marijuana and that he and his friends were “high”. They allegedly cheered when she rescued the child from the pool. This incident was also denied by the father.
The father claimed that in relation to the bath incident to which I have referred the child was within his sight at all times and that the heater was not on the floor. Indeed it was suggested to the mother that the only heater in the bathroom was affixed to the wall. Whilst that was conceded so far as the paternal grandparent’s home is concerned, the mother pointed out that the incident to which she referred did not take place there but in the father’s former home. The mother reiterated the substance of her affidavit evidence both in relation to that incident as well as the circumstances of the child being next to and then running on the road in front of the paternal grandparent’s home whilst being unsupervised by the father or indeed either of the paternal grandparents. The only other person present was B.
The father’s evidence is that he personally supervised the child and if he is unable to do so then either one of the paternal grandparents or his daughters does so. He considered that a child 14 years of age was old enough to have the responsibility to supervise the child in the course of riding bikes on the footpath.
I accept the evidence of the mother and maternal grandmother in relation to the allegations of the child being exposed to an unsafe situation in a bath, as well as outside on a footpath next to a road, as well as being in premises which were unsafe, to which earlier reference has been made. I found their evidence to be detailed, plausible and sincere. It was unshaken in cross-examination. The father appeared to me to have a relaxed attitude to care for the child as demonstrated by his opinion that B, aged 13 soon to be 14, was now old enough to have the responsibility of the care of the child. He avoided addressing the allegations of the incident itself, the age of the child at that time and last, but far from least, that it was his responsibility to supervise the child and ensure that he could not be in an unsafe situation by running on to the road. I accept the evidence of the Family Consultant in relation to those matters.
The mother also alleges that she was informed by the child that upon two occasions this year he had been left in the bath by himself unsupervised and slipped down under the water. Exhibit 7 is a video recording of the child making comments about having been left in the bath by himself and having slipped down in the water. This recording took place in circumstances where the mother had previously had a conversation with the child in which he made those disclosures. The mother decided to record the child’s comments by asking him about the circumstances so as to provide evidence in the proceedings. Whilst that evidence is concerning, the circumstances in which it was given, via a video recording for the purpose of evidence being given, has not persuaded me that on the balance of probabilities the incident occurred to the extent that the child was in fact out of the sight of either the father or one or other of the paternal grandparents.
The mother also alleges that the father consumes intoxicating liquor at times to excess and as a result has been verbally abusive to her lacking anger control at times in the presence or hearing of the child. The father denies those allegations. The tenor of his evidence is that he does not have “a problem with alcohol”. Clearly he has had a problem in that regard given his conviction in the Local Court in January 2000 of “drive with high range PCA” or alternatively has been irresponsible in driving “with high range PCA”. I accept the mother’s evidence which was detailed, plausible and not departed from in cross-examination. I found her to be a witness of truth.
The father was fined $800 and disqualified from holding a driver’s licence for 18 months (January 2000).
The father has also demonstrated he can be irresponsible, as apart from the driving conviction to which I have last referred, in June 2002 in the Local Court he was also convicted of “drive on road when licence cancelled”. He was fined $2500 and disqualified from holding a drivers licence for two years as well as being subject to a community service order of 250 hours.
The father consents to an appropriate order in relation to being restrained from the consumption of intoxicating liquor both prior and during all periods of time that the child is in his care.
The mother further contends that the father does not accept the diagnosis that the child is asthmatic and refuses to carry out any treatment or appropriate care for the child in relation to that health condition.
The mother alleges that in about September or October 2007 she informed the father that the child was in hospital due to an allergic reaction. The father did not provide active support. In addition, the child was hospitalised during July 2008 following an accidental injury to his nose which required him to stay overnight with a medical procedure to follow the next morning. There is no dispute that the mother and the maternal grandmother attempted to speak to the father by telephone to inform him of the situation, followed up by the maternal grandmother sending him a text message. Ultimately they spoke. The father’s evidence which I accept is that the latter telephone conversation took place about 11.30pm, his two daughters were staying with him in the home and it was not practical for him to go to the hospital. He also gave evidence that he did not consider it necessary to attend the hospital the next morning, as he was due to see the child during that day. Whilst I accept his evidence, it shows a lack of sensitivity and insight in that the child may have been comforted by the father’s presence at the hospital on the morning of the procedure. Whilst the father has attended the child’s medical practitioner in relation to his asthmatic condition, that was in compliance with an order made on 5 March 2007. It might have been expected that a genuinely concerned parent would be proactive in seeking a medical opinion in relation to the child’s condition, particularly in circumstances where the father has had doubts in relation to the diagnosis. These incidents demonstrate that the father is a parent who is not practical or active in seeking to be better informed in relation to the child’s health or attending to the child so that the father may provide better parenting for the benefit of the child.
The father consents to an appropriate order in relation to accepting and following information provided by the mother in relation to the treatment of the child with regard to his asthmatic condition.
The father has not paid regular child support since the child’s birth. He was in employment until in or about 2008. He receives a Centrelink Newstart Allowance. In his affidavit sworn 28 October 2008 he stated that he received $380 per fortnight. He no longer has the mortgage commitments to which he referred as he does not own the property at D any longer. He continues to receive Centrelink Newstart Allowance. The only evidence of him seeking employment is from the paternal grandmother who said that the father has been conducting searches on the internet. The evidence is vague at best in relation to his capacity to provide for financial support for the child beyond that to which I have referred, the nature of the employment being sought by him, his prospects of re-employment and his efforts to gain employment. He has purchased clothes for the child, given the mother “petrol money” and also provided unspecified financial assistance for the school expenses and clothing of B and L. Whilst I infer that the father has modest available income, he currently has not shown any real commitment to make regular periodic payments of child support, such as fortnightly payments even for small amounts beyond petrol money, nor has he given any evidence of his proposals such as they may be for future child support other than meeting travel expenses of the mother of $50 per month. Consequently, I find that the father has a current limited capacity to provide for the financial needs of the child and his proposals for the future are also limited.
There is no issue that the father has the capacity to provide for the intellectual needs of the child.
It is not a matter of controversy that the mother has the capacity to provide for all of the needs of the child, subject to whether or not it has been unreasonable for her to limit periods of time that the father has been able to spend time with the child due to her concerns regarding the child being safe in the father’s care.
The maturity, sex, lifestyle and background (including culture and traditions) of the child and of the parties with other relevant characteristics
This matter is not relevant.
The parental attitude of the parties
Each of the parties has an appropriate parental attitude to the child with the exception, so far as the father is concerned, of having exposed the child to unsafe situations due to his lack of an appropriate level of child-focused commitment and his lack of payment of regular child support for the child since his birth.
Family violence and any family violence orders
The mother’s case is that the father has been violent and abusive towards her. Those allegations are denied by the father. Orders have been made in relation to family violence for the protection of the mother to which previous reference has been made.
The mother alleges that in about early 2003 when she was six weeks pregnant the father, whilst intoxicated, struck her twice about the head and kicked her in the stomach, knocking her off her feet and then dragging her up the hallway. He continued to strike her with “the door snake” and otherwise continued to assault her. He then left their residence. The mother bled and suffered a miscarriage about two days later. The mother states that she did not make a complaint to the police as she was “terrified of what the Applicant Father would do to me.”
The mother alleges that in or about late 2003 the father assaulted her as well as also assaulting J.
The mother further alleges that in about late 2003 the father assaulted J again by attaching five clothes pegs to one of his ears.
During the same period of time and following the father’s alleged assault of the mother, she called the police who attended at her premises. The mother states that she was too distraught to give a statement and declined to do so as she feared retaliation from the father. The police escorted her and the child from the father’s residence.
The mother also contends that there were further incidences of violence implicitly by the father in 2003 and 2004. Although she had told him that she did not wish to see him any longer, he cried and came to her house or that of her mother and banged loudly on the door or windows until she saw him. The mother states that on a number of occasions she resumed her relationship with the father in part out of fear of his response. The relationship between the parties improved.
On about 13 June 2005 the mother resumed cohabitation with the father. The mother claims that the father assaulted J and verbally abused him. A few days later after the child was born, the mother, the child and J ceased to reside with the father.
In late 2005, during the course of the mother visiting the father with the child and the parties subsequently arguing about the Mother’s use of the fan, the mother alleges that while she was holding the child the father slapped her on her left ear. The mother ran into the bedroom stating that she would call the police. The father pulled the telephone cord out of the wall socket. He claimed that it was an accident. The mother subsequently consulted a medical practitioner who noted that her eardrum had been damaged and that blood was in her ear. The mother stated that she could not hear out of that ear for the next six weeks.
In about December 2005, the mother took the child to visit the father. The mother claims the father was intoxicated and they argued, during the course of which he allegedly punched her in the stomach. Upon the mother entering the lounge room in which the child had been cared for by the father, the father admitted having dropped the child onto the floor and that it was an accident. The parties subsequently argued in relation to the mother having taken keys. The father subsequently assaulted her. The mother contends that a neighbour witnessed the assault and called the police. The father drove away. The police and an ambulance arrived. The mother subsequently gave a statement to the police. An Interim Apprehended Violence Order was made for the protection of the mother from the father. The father was charged with assault.
On 16 January 2006, the father was convicted of the charge of common assault on the mother arising out of his violence to her referred to her in the last preceding paragraph.
The mother contends that on 2 July 2006 the father assaulted her after she attended his premises at his request to collect her belongings. The mother called the police on her mobile phone. An Interim Apprehended Violence Order was made for the protection of the mother against the father.
On 19 July 2006, a further Interim Apprehended Violence Order was made in the Local Court for the protection of the mother from the father.
The mother was cross-examined in relation to her allegations of violence and abuse. The mother did not resile from her affidavit evidence. In relation to the 2003 allegations when the mother was pregnant and suffered bleeding, the mother gave evidence that she consulted a medical practitioner who gave her an ultrasound. The mother did not explain to the medical practitioner the circumstances.
The maternal grandmother gave affidavit and oral evidence as a corroborating witness on behalf of the mother.
During the course of her oral evidence the maternal grandmother freely conceded that she did not actually witness the allegations of violence set out in paragraph [6] and [7] of her affidavit sworn 9 July 2009. The maternal grandmother gave further evidence that she did see extensive bruising on the mother’s body following the father’s alleged assault of the mother and also saw marks on or about one of her ears following the alleged violent behaviour of the father to the mother set forth in those paragraphs of her affidavit.
I was impressed by the maternal grandmother as a truthful witness and I accept her evidence of her actual observations outlined by her in her oral evidence as well as set forth in her affidavit. As the maternal grandmother conceded that she was not present when the allegations of family violence are alleged to have occurred, I do not accept her affidavit evidence in that regard. I accept the remainder of her evidence for the reason given. The paucity of the evidence does not enable me to make a finding that paragraphs [6] and [7] of her affidavit may be either a reflection of inadequate drafting or inaccurate instructions.
In relation to the issue of family violence and abuse, the father maintained his denial of the mother’s allegations. He was cross-examined in relation to those matters. In relation to the issue of family violence and abuse including the father’s intoxication as alleged, I accept the evidence of the mother and the maternal grandmother wherever it conflicts with the evidence of the father for the following reasons.
I have accepted the maternal grandmother as a truthful witness who gave her evidence in a clear and direct fashion having made the appropriate concessions to which I have earlier referred. Her observations of the mother on the relevant occasions are consistent with the mother’s allegations. In addition, I take into account the father’s conviction in the Local Court on 16 January 2006 on the charge of common assault arising out of his assault of the mother. There is no evidence of any appeal by the father to the District Court. I also found the mother to be a witness of truth. The mother gave detailed affidavit evidence of the allegations of assault and abuse which were maintained during her oral evidence. The father’s denial of any violence perpetrated by him on the mother is inconsistent with not only the evidence that I have accepted but also his conviction on the charge of common assault. To accept the father’s denial of violence, abuse and intoxication as alleged would implicitly mean that the mother’s evidence and that of the maternal grandmother, so far as it was relevant, represented repeated detailed fabrications. There is no evidentiary basis for such a potential conclusion to be reached.
Accordingly I am satisfied on the balance of probabilities that the father has been violent and abusive to the mother, as well as J, as alleged by the mother in her affidavit evidence.
The preference for an order least likely to lead to an institution of further proceedings in relation to the child
The evidence of the mother which I accept is that, should there be an order which permits the father to spend periods of time with the child on an unsupervised basis, then the mother will commence further proceedings should she be of the view that an incident or incidents have occurred which demonstrate, so far as she is concerned, that the child has been or may be unsafe in the father’s care. It is implicit that that is the mother’s approach in the event that such a concern may arise, either through lack of consistent and focused supervision by the supervisor or at any time that the father has unsupervised care of the child such as after the period of supervision has concluded.
It is also implicit in the father’s case, having regard to the submissions made on his behalf that an order for supervised care as sought by the mother, that is, until the child attains the age of eight years[7] represents an unacceptable period of time and as a result I infer that there is the potential for the institution for further proceedings by the father.
[7] Exhibit 4.
In my view, an important consideration is the safety of the child and should orders which are reasonable in the circumstances and in the child’s best interests be made which promote that safety, but at the same time increase the likelihood of further proceedings being instituted, then that is a consequence which will have to be met at the time if and when such proceedings are indeed instituted.
The extent to which each of the parties has fulfilled or failed to fulfil parental responsibilities by each of the parties in relation to major long-term issues, spending time and communicating with the child
The mother has been the primary carer of the child since his birth. I have concluded that she has fulfilled all of her parental responsibilities in relation to major long-term issues.
I also find that the father has fulfilled his responsibilities other than not being child-focused with regard to all aspects of the child’s health, the subject of my earlier findings.
Conclusion
The presumption of equal shared parental responsibility
It is submitted on behalf of the mother that the presumption of equal shared parental responsibility contained in the provisions of s.61DA(1) has been rebutted on either of the grounds set forth in subs.(2)(b) and (4) of s.61DA.
Section 61DA(1) makes it mandatory to “apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 61DA(2) is in the following terms:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
I did not receive detailed submissions in relation to the interpretation of s 61DA(2). I rely upon its interpretation in an earlier judgment.[8]
[8] Bookhurst & Bookhurst [2009] FamCA 6.
I have made findings of fact in relation to family violence perpetrated by the father. Those findings are sufficient to give me “reasonable grounds to believe”, which is the platform that must be established for the purpose of rebuttal of the presumption of equal shared parental responsibility. Section 61DA(2) does not provide in its terms for the exercise of discretion so far as the rebuttal of the presumption is concerned, in contrast to the discretion provided by s 61DA(4) which is the “best interests of the child” ground.
Accordingly I have determined that the presumption is rebutted, relying upon s 61DA(2)(b). As a result, it is not necessary for me to consider the ground contained in s 61DA(4).
Notwithstanding that I have decided that the presumption of equal shared parental responsibility has been rebutted, it is still open to make a parenting order which, by its provisions, provides for equal shared parental responsibility. The reason is that a parenting order must be made in accordance with s 60CA which dictates that the best interests of the child is the paramount consideration.
I have concluded that it is in the best interests of the child for there to be an order which provides for the mother to have the sole parental responsibility for the major long-term issues[9] subject to her consulting with the father in relation to such issues as arise prior to any decision being made by her. My reasons are as follows.
[9] s.4(1).
The High Court has held that I am not bound to make orders as sought by the parties.[10] The mother is the primary carer of the child and has fulfilled that role since the child’s birth. Indeed the parties separated within a few days of the birth. The mother has carried out that role in all of its aspects throughout the child’s life without any proactive or constructive interest in relation to the child’s care, accommodation, health and last, but not least, child support having been paid by the father. The only exceptions to those matters have been the sporadic payments of money to the mother for petrol expenses to ensure that the child is able to be brought to the father so that he may spend time with the child, and otherwise his interest in periods of time being spent by him with the child to meet his requirements.
[10] U v U [2002] FLC 93-112 at 89,077; 89,082; 89,089; 89,102.
I have taken into account also that the mother has carried out the role of primary carer at times in difficult circumstances, due to the father’s violent and abusive conduct towards her and at times to J. I found that these matters have been exacerbated at times due to the father being intoxicated due to his consumption of alcohol. Not surprisingly, communication between the parties has generally been poor. Nonetheless, the mother has facilitated periods of time to be spent by the father with the child including maintaining a civil relationship with the paternal grandparents, especially the paternal grandmother. The father has lived for some time in the premises owned by the paternal grandparents. As a result, the mother’s actions have enabled the relationship between the child and the father as well as with the paternal grandparents to continue and develop. In view of the findings that I have made in relation to the issue of safety of the child, in my view, the mother has been justified in making that a prime concern.
I have also taken into account that, despite the deplorable conduct by the father towards her, the mother has ensured that the child has not been influenced in any adverse way towards the father and indeed the Family Consultant’s evidence on that matter is apposite.
The mother has also been vigilant in ensuring that the child’s health issues have been properly attended to by medical practitioners without the active support of the father. Indeed, his interest on that subject could be described as being bland.
The evidence of the father in terms of his proposals for the future of the child are limited to unsupervised periods of time that he may spend with the child and change of the child’s surname. There was an absence of evidence demonstrating any interest that he had in the future education of the child, let alone his proposals for regular payment of child support to meet part of the living expenses of the child. Whilst I appreciate that the father’s current circumstances are modest indeed, there was no evidence given by him about his attempts to improve his financial circumstances in the future so that he can make a worthwhile contribution to the child’s future living expenses and education. Apparently he continues to be content to leave those matters in the hands of the mother, other than the payment of petrol money and perhaps the purchase of clothing from time to time on some unspecified basis.
Nonetheless, I have concluded that it is in the child’s best interests for the father to have an opportunity to make a meaningful input in relation to major long-term issues affecting the child. The parties have demonstrated that from time to time they are able to have worthwhile communication. It is important that the father not be marginalised in relation to those issues. As a result, the order that I will make will provide for the mother to consult with the father in relation to major long-term issues prior to any decision being made by her.
The father’s periods of time with the child and whether such periods be supervised
The father has sought orders that the periodic periods of time be each alternate weekend from 5.00pm Friday until 5.00pm Sunday, coinciding with the time that he spends with B and L, and each Thursday from 3.30pm until 7.30pm. In addition, he seeks that the periods of time also include half of all gazetted NSW school holiday periods regardless of whether the child has yet commenced school. In addition other periods of time are sought to reflect special occasions.[11]
[11] Exhibit 8.
The mother seeks orders that the relevant periods of time be each alternate Saturday from 10.00am to 4.00pm and each alternate week on Thursday from 3.30pm until 7.30pm. The mother seeks an order that such periods of time be supervised until the child attains the age of eight years, whereupon periods of time be extended to alternate weekends and Thursday overnight until the commencement of school the next day.
So far as the periods of time are concerned, each of the parties’ proposals are substantive. I consider that the merits of the proposals are finely balanced. I have concluded that it is in the child’s best interests to have a regime of increasing periods of time with the father and that such periods be supervised by the paternal grandmother until the child attains the age of six years. My reasons are as follows.
The child is very young, having recently turned four years of age. He has spent sporadic periods of time with the father, usually for part of the weekend during the day and at times for a few hours during the week. There have been periods when such care has not taken place. Each of the parties blames the other. However, I have made findings in accordance with the mother’s case in relation to the father’s violence and abuse as well as her concerns with regard to the safety of the child whilst in the care of the father. I have taken into account the recommendations of the Family Consultant, which are supportive of the father’s approach to the periods of time that the child should spend in his care subject to her proviso that there is a lack of evidence “to support a view that [the father’s] behaviour compromises [the child’s] safety when he is spending time with him.”[12] The Family Consultant was not familiar with all of the relevant evidence. Indeed, that is not part of her role. As is apparent I have made findings that there have indeed occurred episodes which demonstrate that the father’s care has been lacking at times in ensuring that the child is safe whilst at the father’s premises, as well as his rather nonchalant attitude that the responsibilities for supervising an active four-year old to ensure that he does not move on to the roadway can be appropriately left to B, apart from the alarming incident of leaving the child in the bath unsupervised.
[12] Exhibit 3.
The child has only spent a very occasional single overnight period in the care of the father. The mother supports the father’s approach that the child be in his care preferably at the same time that B and L are also in his care. That will be for the benefit of the child as well as B and L with whom he has a fond relationship. I have given particular weight to the anxiety and stress that the mother has shown in relation to her concern for the safety of the child whilst in the care of the father. I find that her anxiety is sincere and well-founded. It is relevant matter to take into account.[13] It is in the child’s best interests that future periods of time are demonstrated to be for the benefit of the father and the child, free of any incident or controversy. That will thereby alleviate the mother’s anxiety and establish a better basis for extended periods of time to take place with the confidence of both parties that such periods will be beneficial for the child in all respects, without continuing concerns that he is safe and without more incidents occurring of his exposure to danger as has occurred in the past. I consider that it will be for the child’s benefit that the paternal grandmother, with whom the child has a loving relationship, supervise such periods of time. The paternal grandmother is acceptable to the parties in that role. I accept the paternal grandmother’s evidence of her willingness to perform and understanding of the responsibilities of the role of supervisor as well as her undertaking given in that regard.[14]
[13] Re Andrew (1996) 20 Fam LR 538.
[14] Exhibit 9.
The mother has sought an order that such supervised periods of time continue until the child has attained the age of eight years. I do not accept that a further four years of supervised periods of time is in the child’s best interests. The child has a loving relationship with the father and the paternal grandmother as well as the paternal grandfather. It appears on the evidence that for the foreseeable future, the father will continue to reside in the granny flat attached to the premises of the paternal grandparents. It should be apparent to the mother over the next two years as to whether supervised periods of time have not only been successful, but that the child has become more assured and aware due to his growing maturity. The child’s development will be enhanced in the normal course of events when he commences school in the first term 2011. Whilst I have not lost sight of the evidence of the Family Consultant that children still need to be responsibly cared for in terms of lack of awareness of danger in the environment, often until the age of eight or nine years, I consider that the next two years should be sufficient for the father to demonstrate that whatever shortcomings there have been in the past, he has shown himself to be a parent who will apply himself in a more consistent and active way in the close supervision of the child, regardless of the overall supervision to be exercised by the paternal grandmother.
It is against that background that I will also make orders for extended periods of time that the child may spend in the care of the father taking into account the orders that each of the parties have sought.[15] I will make an order granting liberty to either party to apply to discharge, vary or suspend any of the parenting orders that I will make upon seven days’ written notice being given in the event that the circumstances arises which justify an application being made, having regard also to the parent concerned being properly advised.
[15] Exhibits 4 and 8.
I will also make orders to provide by agreement for an increasing period of time that the child spends with the father during the long school vacation that follows the final school term given his young age and that he has been in the primary care of the mother all of his life, other than for an occasional overnight stay with the father.
In addition, I will make an order that the parties may agree on substituted or alternative periods of time that the father may spend with the child whenever it seems appropriate to the parties to do so. That will ensure that they have flexibility and sensitivity to the ever-changing needs and activities of a growing child.
Further parenting orders will be made which, with minor variations, largely reflect the agreement of the parties announced by counsel during the course of submissions.
For the reasons previously given, I have concluded that all of the parenting orders will further the primary consideration of the benefit to the child of having a meaningful relationship with each of his parents. Those orders, together with the injunction restraining the father from denigrating the mother, the likely serious consequences for the father should there be further proceedings instituted by the police against him for an apprehended violence order or a charge of assault, combined with the liberty that I will grant to set aside, vary or suspend any of the parenting orders on short notice, should have the effect of protecting the child from being “exposed to abuse, neglect or family violence”.[16]
[16] s.60CC(2)(b).
Change of surname of the child
The father has sought orders requiring the parties to effect a change of the child’s surname to “Cole”.[17]
[17] Exhibit 8.
Despite the fact that the father has sworn two affidavits that were relied upon in the proceedings,[18] brief evidence was given by him only in the latter of those affidavits in support of the orders so sought.
[18] Affidavit sworn 28 October 2008; 26 June 2009.
During the course of cross-examination, he gave evidence that the only reason for his application is that he “would like someone to carry on the family name”. He also stated that he is “happy to leave it to the child when he gets older”. The father’s further relevant evidence was that, unless the child’s surname was changed to “Cole”, the family name may not be continued because B and L may marry and assume the surname of their spouses. Whilst the latter is a possibility, I can take judicial notice of the fact that in current Australian society, some women who marry retain the use of their maiden name. However, all of those matters are in the realm of speculation.
I will not accede to the application of the father for the following reasons.
The child has been known and recorded as having his current surname of “Chapman” since his birth. The surname that he uses is the same surname of the mother who has been his primary carer for all of his life. The child’s other siblings in the mother’s household also have the same surname of “Chapman”. In those circumstances, I infer that it is less likely to be confusing for the child should be retain his current surname.
I did not receive any submissions from counsel as to whether or not the order sought was a parenting order dictated by the paramountcy principle of the best interests of the child, or alternatively, an injunction pursuant to s 68B(1). Surprisingly, counsel did not refer me to any authorities in relation to the relevant principles that are required to be applied.
Despite the doubts raised in past Full Court judgments and having regard to the lack of submissions on the point, I have concluded that the best interests of the child should determine whether the application of the father is successful or alternatively, that it is an important factor to be given weight in the proceedings.[19] In applying either those approaches, I have determined that it is in the best interests of the child or alternatively it is appropriate for him to continue to retain and use the surname “Chapman”. That has been his surname for all of his life, as well as that of his primary carer and the other related children in his household. Whilst it is understandable that the father has the concern of continuation of his family name, that is more a matter of his needs rather than that of the child’s.
[19] Flangan & Handcock (2001) FLC 93-074; Koldsjor & Addington [2009] FamCAFC 21.
I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.
Associate:
Date: 28 July 2009
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