Davies & Wellesley
[2022] FedCFamC2F 359
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davies & Wellesley [2022] FedCFamC2F 359
File number(s): ADC 411 of 2019 Judgment of: JUDGE BROWN Date of judgment: 24 February 2022 Catchwords: FAMILY LAW – interim hearing – whether the mother and child’s residential address should be disclosed to the father – assessment of risk – best interests of the child – - where the parties have a very limited co-parenting relationship – where the parties separated in acrimonious circumstances – matters to be considered. Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CC. Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 24 February 2022 Place: Adelaide Counsel for the Applicant: Ms Pascale Solicitor for the Applicant: Pascale Legal Barristers & Solicitors Counsel for the Applicant: Mr Gallasch Solicitor for the Applicant: Dixon Gallasch Pty Ltd ORDERS
ADC 411 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAVIES
Applicant
AND: MS WELLESLEY
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
24 FEBRUARY 2022
UPON NOTING that the interim orders referred to in paragraph 2 of the Orders made by Judge Blake on 16 November 2021 should have been on a final basis and are therefore outlined in these orders.
THE COURT ORDERS BY CONSENT:
1.That all previous Orders do be discharged.
2.That the parents have equal shared parental responsibility for the child X born 2018 “the child”.
3.That the child do live with the mother.
4.That the child spend time with the father as follows:-
Commencing 17 September 2021
(a)From 5.00 pm Friday to 5.00 pm Sunday each alternate weekend thereafter;
(b)At any or such other times as agreed to between the parties in writing.
Commencing 8 October 2021
(c)From 5.30 pm Thursday to 5.30 pm Friday in each alternate week thereafter;
(d)At any or such other times as agreed to between the parties in writing.
Commencing Reception Term 1
(e)Each alternate weekend from the conclusion of school Friday or 3.00 pm if it is a non-school day until 5.00 pm Sunday;
(f)In the intervening week, from the conclusion of school Thursday or 3.00 pm if it is a non-school day until the commencement of school Friday or 9.00 am if it is a non-school day;
(g)At any or such other times as agreed to between the parties in writing.
Commencing Reception Term 2
(h)Each alternate weekend from the conclusion of school Friday or 3.00 pm if it is a non-school day until the commencement of school Monday or 9.00 am if it is a non-school day.
(i)In the intervening week, from the conclusion of school Thursday or 3.00 pm if it is a non-school day until the commencement of school Friday or 9.00 am if it is a non-school day;
(j)At any or such other times as agreed to between the parties in writing.
5.Upon such time that the child begins school, the child spend school holidays with the parties as follows NOTING THAT the parties’ regular term time with the child will suspend on these occasions:-
(a)For one week of each short school holiday;
(b)For each alternate week of the long school holiday;
(c)At any or such other times as agreed to between the parties in writing.
6.That the child spend time with the parties for special occasions as follows NOTING THAT the parties’ regular time with the child will suspend on these occasions:-
(a)From 12.00 pm Christmas Eve to 3.00 pm Christmas Day with the father in odd numbered years, NOTING THAT the child will spend from 3.00 pm Christmas Day to 6.00 pm Boxing Day with the mother in odd numbered years;
(b)From 12.00 pm Christmas Eve to 3.00 pm Christmas Day with the mother in even numbered years, NOTING THAT the child will spend from 3.00 pm Christmas Day to 6.00 pm Boxing Day with the father in even numbered years;
(c)From 3.00 pm Good Friday to 3.00 pm Easter Sunday with the mother in odd numbered years NOTING THAT the child will spend from 3.00 pm Easter Sunday to 5.00 pm Easter Monday with the father in odd numbered years;
(d)From 3.00 pm Good Friday to 3.00 pm Easter Sunday with the father in even numbered years NOTING THAT the child will spend from 3.00 pm Easter Sunday to 5.00 pm Easter Monday with the mother in even numbered years;
(e)From 5.00 pm on the eve of Father’s Day to 5.00 pm Father’s Day with the father;
(f)From 5.00 pm on the eve of Mother’s Day to 5.00 pm Mother’s Day with the mother;
(g)From 3.00 pm to 6.00 pm on the child’s birthday and the respective parents’ birthday with the parent the child is not otherwise spending time with on the day.
7.That handovers occur as follows :-
(a)At the child’s school if it is in session; otherwise
(b)At the father’s home.
8.The parties shall permit the child to communicate with each parent in accordance with the child’s wishes, NOTING THAT the parent in whose care the child is at the time is to facilitate a telephone or Facetime call.
9.The parents shall communicate with each other by way of SMS in the first instance in relation to any discussions pertaining the child.
10.That in the event of a medical emergency involving the child, the parent who has the care of the child shall notify the other parent as soon as reasonably practicable and shall allow the other parent to attend upon the child.
11.That both parties keep the other informed as to the name and contact details of any medical practitioner or allied health professional treating the child.
12.That the parties will advise one another of significant medical appointments, or allied health worker and dental appointments, and provide details of the same and that each parent be at liberty to attend for the duration of the child’s treatment
13.That both parties be at liberty to attend all school, sporting, and extra-curricular activities that parents would ordinarily attend, including the child’s counselling where appropriate.
14.That both parties be at liberty by arrangement with the child’s school to have copies of all reports, newsletters, photographs and any other information which the party would ordinarily be entitled to receive at their own expense.
15.On a without admission basis, the parties be restrained and an injunction is hereby granted restraining each of them from:-
(a)Exposing the child to any drug paraphernalia whatsoever;
(b)Bringing the child into contact with any person/s under the influence of illicit substances;
(c)Consuming alcohol to excess in the presence of the child or for a period of twenty-four hours prior to the children coming into his/her care;
(d)Consuming any illicit substances in the presence of the child or for a period of twenty-four hours prior to the children coming into his/her care;
(e)Denigrating the other party to or in the presence of the child or allowing any third party to do so;
(f)Discussing the allegations made in these proceedings with or in the presence of the child or allowing any third party to do so.
(g)Travelling with the child overseas or interstate without the prior written consent of the other party.
16.On a without admission basis, the father be restrained and an injunction is hereby granted restraining him from leaving the child alone with the paternal step-grandfather or with the paternal aunt, Ms B.
17.Upon such time that the child attains the age of seven (7), the parties attend at community-based mediation or a Family Dispute Resolution Conference (if eligible) to discuss the father’s further time-spending arrangements with the child.
18.That each party shall keep each other informed of their mobile telephone number and email address and notify the other of any change to same within twenty-four (24) hours of such change occurring.
THE COURT FURTHER ORDERS THAT:
19.The parties attend co-parenting counselling at their joint and mutual expense at C Family Services and they each do all things necessary for this to occur.
20.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davies & Wellesley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected in respect of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The matter of Mr Davies and Ms Wellesley is listed before me today. The parties are the parents of a child, X, who was born in 2018. The case concerns arrangements for X’s care in respect of one discrete issue – should the mother be required to disclose her and X’s residential address to the father.
Ms Wellesley resolutely resists such an outcome, as she asserts that if the father is aware of where she lives, she will feel frightened and insecure. Mr Davies asserts that he needs to know the address so if anything untoward happens to X, he will be able to respond.
BACKGROUND
Mr Davies commenced these proceedings on 31 January 2019, when X was about five months of age, and in his affidavit filed in support of his initiating application, he outlines the background of the parties’ relationship with one another.
The parties are of similar ages. Mr Davies was born in 1995 and Ms Wellesley was born in 1996, and they were in a relationship with one another between mid-2017 and early 2018. So, that was a matter of months.
It is Mr Davies’ position that the parties only actually lived in the same household for six days in early 2018, and it was after the parties separated that it was discovered by Ms Wellesley that she was pregnant with X.
The parties have no significant relationship with one another as co-parents and have had a very brief relationship with one another. However, the reality of their situation is that they will be linked with one another as X’s parents.
Both of them will have financial obligations towards X in respect of child support, and clearly they have emotional obligations to X, because under the Family Law Act 1975 (Cth) (“the Act”), it is children who have rights, not parents.
Section 60B(2) outlines some of the rights children have, one of which is a right to know each of their parents, regardless of whether their parents are married, separated, or have never been married, or indeed, have never lived together. Children also have a right to spend time on a regular basis with each of their parents.
Against this background, the court recognises some ideals in respect of parenting which are not always achievable. Parents are encouraged to agree about how their children are to be parented. They are to be encouraged to meet their responsibilities in respect of their child or children.
When Mr Davies commenced these proceedings, there was some uncertainty in his mind regarding whether he was actually X’s father, and in those circumstances, orders were made at an early stage of the proceedings for a paternity test to take place, which revealed beyond all shadow of scientific doubt that Mr Davies is indeed X’s father.[1]
[1] See the Orders of Judge Brown dated 9 May 2019; Affidavit of Ms G filed 12 June 2019 at Annexure A.
Thereafter, the proceedings had a somewhat protracted process through the court system, and initially some orders were made in respect of Mr Davies having closely monitored time with X at the D Centre and also at the E Contact Centre.
It was clear throughout these proceedings that the parties do not know one another, do not trust one another, and each concedes that they communicate rarely, if at all. It is essentially the mother’s position that Mr Davies is a controlling person, who has very significant issues to do with drug abuse.
On the other hand, it is the father’s position that all he has ever wanted is to have a relationship with X, and Ms Wellesley, in the initial stages, was extremely difficult to deal with. When she was pregnant, it is his position that he just wanted to know what was happening and also where the parties stood in respect of their financial obligations in respect of a lease they had entered. It is the mother’s position that, in that period, she was harassed by Mr Davies and forced to change address.
Mr Davies concedes that a complaint was made about his conduct to the police, but from his perspective, they did not take the matter any further, and he was spoken to. He indicated that he had never done anything wrong but just wanted to know what was happening to Ms Wellesley, and the police were satisfied insofar as that was concerned.
In this context, the father’s previous solicitor, after some orders were made requiring the police to disclose documents relating to Mr Davies, supplied information in respect of the father’s relationship with another person which had predated his relationship with Ms Wellesley.[2]
[2] See Affidavit of Ms G filed 13 August 2019.
She is a person known as Ms F who is asserted to have made similar allegations against Mr Davies, and was ultimately successful in obtaining an intervention order against him which led to some police charges.
It is in that context that the mother asserts that she has reason to be deeply fearful and apprehensive of Mr Davies, notwithstanding the fact that the parties have not been involved with one another as a couple for a significant period of time, and notwithstanding the fact that the mother is not in a position to say that she has been subject to any threat or coercion.
As I understand matters, the parties are each legally aided, and as a consequence of that, they were referred to a process of Family Dispute Resolution.[3] To their credit, they were able to reach a final agreement in respect of arrangements for X’s care on 16 November 2021.[4] The parties agreed that they would be conferred with equal shared parental responsibility for their child.
[3] See the Orders of Judge Blake dated 9 August 2021.
[4] See the Orders of Judge Blake dated 16 November 2021.
What does that mean? It is a responsibility that the parties are conferred with both individually and jointly. It is reflective of the aspirations of the Act, to which I have already referred. The parents are encouraged to make their own decisions in respect of children.
If parents have equal shared parental responsibility for their child, they are under an obligation to make decisions consensually about their child of a major, long-term nature. In this context, “major long-term decisions” is defined in section 4 of the Act.
It includes things such as the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name, and changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with a parent.
X will be attending primary school in some time, I would imagine, in 2023. That is a decision that the parties have been conferred with responsibility to make. If X has to have some significant medical intervention, the parties have to make that decision. X’s name is recorded as X in the consent orders.
Sometimes, parents want to change a child’s name. They have to confer and consult about that and make a bona fide attempt to reach an agreement. The parties have agreed that they are going to have a long-term parental relationship with one another, which is going to have ramifications for X for the next 14 to 15 or so years.
Clearly, it is going to be difficult for the parties to make any major decision about X, but still, they are obliged to inform and consult with one another and make a genuine effort to reach common ground, and it is only then, that it falls to the court to make a decision.
To their credit, the parties have also agreed on an incremental regime for X to spend time with her father. It started in September 2021 and is gradually increasing through reception, terms one and two, and arrangements have been made for special occasions.
The parties have agreed that they will keep each other informed about medical issues, and so on and so forth. Handovers are to occur at X’s school or at the father’s home. One issue remains, and it is a significant issue.
It is the mother’s position that, because of her fear of Mr Davies and because of what she believes occurred to Ms F, she is not prepared to disclose her address, and therefore X’s address, to Mr Davies. She wants to keep it a secret.
From Mr Davies’ position, it is his view that knowing where his child is, whom he loves, is an integral part of being a parent. He wants to know where the child is so, if something terrible happens, he can know about that as soon as is reasonably practicable.
What that terrible thing is, is a matter for conjecture, but I suppose there may be some terrible incident in a particular suburb which is all over the news, and it rushes through his mind, “Oh god, I hope that is not X’s suburb or near her home.” The parties cannot agree that issue, and it falls to me.
I really do not want to determine that issue, because I suspect if I determine it the way the mother wants, the father will be angry and annoyed, and that will not assist the parties’ clearly very difficult relationship with one another as parents. And vice versa, so far as the mother is concerned.
As I say, the Act has some somewhat utopian aspirations in it in terms of parties and parents being encouraged to reach agreement and make joint decisions about their child. I would be naïve to think that the parties are anywhere near having that facility.
After all, they were only involved with one another for a very short time. They separated in acrimonious circumstances. The police were involved. Then, there was a DNA test. Then, there was a lengthy process of court orders and supervision.
The parties clearly do not like one another very much, and do not trust one another, and the mother’s position is that she is frightened of Mr Davies, who asserts that he has not done anything wrong. Whatever I do, I have to be satisfied that it is in the best interests of X.
I am concerned that the current dynamic between the parties is not in her best interests. At the moment, she lives in a situation where she has got two aspects of a family who cannot consult or discuss anything with one another.
It may be unrealistic for me to think that that is ever going to be improved, but as I have discussed with the parties’ legal representatives, there are processes available. They are not easy, because basically the parties themselves have to commit to a process of making their relationship with one another as parents more workable, and that take effort, it takes insight, and as far as I know, neither of the parties may be prepared to put in the effort, or have the insight.
Clearly, it will be best for X if she thinks, “Look, my parents – my mum and dad – they do not like one another, but it is okay for me. I get to see each of them, I love them both and it works.”
However, if every aspect of this child’s life is going to be tinged with parental conflict, that will do her harm. If there was a child psychologist involved in this case, I think they would tell me that would have the potential for the child to assume that she is the reason why her parents do not get along, and to bear the burden of that, which has the potential to be very emotionally damaging for her.
THE LEGAL PRINCIPLES APPLICABLE
In determining how X’s best interests are to be served, I must look at a long list of matters in the Act. There are two categories of matter: the primary considerations, and a longer list of additional considerations.[5]
[5] See Family Law Act 1975 (Cth) ss 60CC(2)-(3).
The primary considerations are twofold: the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to abuse, neglect or family violence.
In terms of the first matter, it would seem, given what the parties have agreed, that X is likely to, at this stage, benefit from having a meaningful level of relationship with each of her parents, because she is going to see her father fairly regularly.
I must consider the need to protect X from the physical and psychological consequences of being subject or exposed to abuse, neglect or family violence. The mother says that she is fearful that she may be stalked or subject to some form of coercion or control, and in this context, family violence as defined in section 4AB of the Act includes stalking.
In a case like this, the psychological harm is more subtle, perhaps, because one of the significant factors of this case is that there is a rift or a gorge, if you like, between the paternal and maternal aspects of X’s family.
X will know where she lives with her mum. She loves her mum. She will want to talk to those she loves, including her father, about what she does with her mum, about what is in her mum’s house, the special things about it. In that context, is the child required to be a person who is charged with keeping that secret from her father?
Is that a burden that is acceptable for a child of X’s age to bear, that she has to keep a secret at her mother’s direction? Is that a normal thing for a child of X’s age to do, and that she cannot say where she lives”? Mr Gallasch, who appears for Ms Wellesley, concedes that inevitably X’s address is going to get out.
In addition, it is axiomatic that Ms Wellesley can apply for a family violence order, and the police will be obliged to protect her. Underpinning her case is that she does not accept the police will be effective in this regard. Whether that is so or not, I do not know.
The mother’s case is that there is a risk of psychological harm for X, because if her mother is insecure, and worried all the time, that will have implications for the child’s care. That must be the case if it is accepted, and also because she is the child’s primary carer. It is an important factor in terms of the nature of her relationship with the child.
Similarly, it will be a psychological burden if X is not allowed to disclose her address, or she feels guilty if she does. All these factors need to be balanced against one another. Unrealistic as it may be, the best outcome for X is that her parents work together to improve their relationship with one another.
The chief manner in which this can occur is that time passes, and Ms Wellesley’s apprehension about Mr Davies reduces, because he behaves in an appropriate and respectful manner towards her, and X is a happy child. As a consequence, the parties start to respect one another.
As I say, I think I would be naïve to think that the parties are anywhere near to achieving that. The parties have also agreed that following the agreement they reached, that when X turns seven years of age in September 2025, they will have a further Family Dispute Resolution conference.
That is a long time away. X will be in primary school. Much will have changed. I think, at the moment, that is the appropriate stage at which to discuss the issue of the child’s and the mother’s address.
CONCLUSIONS
Mr Davies does not have any specific right to know the child’s address, per se, and I do not think it would be in the child’s best interests to force the mother to disclose it. Rather, I think that would lead to still more agitation and mistrust between the parties.
I cannot make an order that they respect one another, and that they respect one another’s physical integrity. I cannot make an order that they try and bridge the gap between them. It would be sensible if they did. That will require, as I say, hard work, insight, and a focus on what is best for X, rather than what they each want for themselves individually.
So, in those circumstances, I decline to make the order which is sought by the father, and I will direct that the parties attend co-parenting counselling at their joint and mutual expense at C Family Services.
To this end, I direct that each of them, through their solicitors, make the appropriate arrangement to attend that co-parenting counselling. But otherwise, the applications are dismissed.
For all of these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 29 March 2022
0
0
0