Drummond and Hunter
[2014] FamCA 480
•2 July 2014
FAMILY COURT OF AUSTRALIA
| DRUMMOND & HUNTER | [2014] FamCA 480 |
FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Equal shared parental responsibility
| APPLICANT: | Mr Drummond |
| RESPONDENT: | Ms Hunter |
| FILE NUMBER: | SYC | 1752 | of | 2012 |
| DATE DELIVERED: | 2 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 16 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Stichter |
| SOLICITOR FOR THE APPLICANT: | Otto Stichter & Associates |
| RESPONDENT: | In Person – Ms Hunter |
Orders
IT IS ORDERED
That the parents have equal shared parental responsibility for the child L (“the child”) born … 2011.
That all previous parenting orders in relation to the child are vacated.
That from the date of these orders until the end of December 2014, the child spend time with the father as follows:
(a) Each Monday from 10am to 5pm;
(b) Each Wednesday from 10am until 5pm Thursday;
(c) Each alternate Saturday from 10am to 5pm.
That from January 2015 until the end of June 2015, the child spend time with the father as follows:
(a) Each Wednesday from 10am until 5pm Thursday.
(b) Each alternate Saturday from 10am until 5pm Sunday.
That from July 2015, the child spend time with the father as follows;
(a) Each Wednesday from 10am to 5pm on Thursday;
(b) Each alternate weekend from 5pm Friday until 5pm Sunday.
That from January 2016, the child spend time with the father as follows:
(a) Each Wednesday from 10am until 5pm Thursday;
(b)Each alternate weekend from 5pm (or from the end of the school day if the child is at school) until 10am on Monday (or the commencement of school if the child is at school).
That from the time the child commences school, the time provided in orders 5 or 6 is suspended during school holidays and the child will spend half of each school holiday period with each parent.
That for the purpose of Order 7, school holidays commence at 10am on the first day following the last day of term and end at 5pm on the last day immediately before the child attends at school for the next term.
That for the holidays following the first, second and third school terms, unless otherwise agreed, the child will spend the first half of the holidays with the father and the father’s weekend time with the child, in accordance with Order 5, will start on the first weekend after the commencement of the school term.
That for the holidays following the fourth school term, the “Christmas holidays” unless otherwise agreed, the child will spend the second half of the holiday period with the father.
That notwithstanding any other order:
(a)The child will live with the mother from 5pm on the Saturday immediately before Mothers’ Day until 6pm on Mothers’ Day.
(b)The child will live with the father from 5pm on the Saturday immediately before Fathers’ Day until 6pm on Fathers’ Day.
(c)The child will live with the father from 11am on Christmas Eve until 11am on Christmas Day, and with the mother from 11am on Christmas Day until 11am on 26 December in odd numbered years.
(d)The child will live with the mother from 11am on Christmas Eve until 11am on Christmas Day, and with the father from 11am on Christmas Day until 11am on 26 December in even numbered years.
(e)On the child’s birthday, he will spend time with the parent who is not caring for him on that day, from 4pm until 6pm.
That unless changeover takes place to or from school, the child will be collected and returned at the Business C store at Suburb B. Unless a parent is not reasonably available, both parents shall attend at the changeover and each parent shall use their best endeavours to ensure that no other person shall be present within 50 metres of the parents.
That communication between the parents will take place by telephone, either by text or by voice, and each party will ensure that the other has his or her mobile phone number.
That each parent shall notify the other as soon as possible if the child suffers any serious illness or injury.
That in the event that the child is taken to see a medical practitioner or medical facility, then the parent who made those arrangements shall:
(a)Advise the medical practitioner that the other parent is to have access to the medical practitioner and any medical records;
(b) Notify the other parent within 24 hours; and
(c) Provide details of any diagnosis; and
(d) Provide details of any prescribed medication including the dosage.
That each parent authorise and instruct any pre-school or school, which the child attends, to provide copies of any material normally prepared for the information of parents to both parents. For that purpose, each parent is authorised to provide a copy of these orders to the pre-school or school.
That each parent is restrained from denigrating the other parent, or members of the other parent’s family, or discussing these proceedings or the evidence in these proceedings in the presence or hearing of the child.
That each parent be entitled to attend any function or event at the child’s pre-school or school at which parents are invited to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Drummond & Hunter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1752 of 2012
| Mr Drummond |
Applicant
And
| Ms Hunter |
Respondent
REASONS FOR JUDGMENT
The child L (“the child”) was born in 2011 and is now three and a half years old. His mother Ms Hunter (“the mother”) and his father Mr Drummond (“the father”) have been unable to agree about appropriate arrangements for the child to spend time with his father, although there is no dispute that the child will continue, until he starts school, to live primarily in the care of his mother.
The parents were not living together when the child was born. Each was residing in the home of his or her parents. In June 2011 they started to live together in a flat attached to the home of the father’s parents and they lived in those premises together until 6 January 2012 when the mother left with the child and returned to live with her own parents.
On 14 May 2012 interim orders were made by consent. Because the mother had made allegations that the father was using illicit drugs those orders contained a provision for the father to undergo random urine drug testing on three occasions prior to the next court date and for the father to spend time with the child at a supervised contact centre.
On 10 September 2012 further interim orders were made which provided for the child’s time with his father to be supervised by the father’s aunt Ms M.
On 5 March 2013 interim orders were made which increased the time that the child spent with his father supervised by Ms M. The specified contact periods were: In the first week of each fortnight on Monday and Thursday 10 am to 2 pm and on Saturday 10 am to 3 pm. In the second week, on Wednesday between 10 am to 12 noon.
Those orders provided for further random urine drug testing.
On 13 December 2013 further orders were made by consent providing that the father’s time with the child did not any longer need to be supervised and the matter was listed for hearing on 16 and 17 June 2014.
Since 13 December 2013, the father has spent time with the child on Mondays and Thursdays and Saturdays in the first week of each fortnight, and Wednesday in the second week, in accordance with the arrangement which had been put in place in March 2013 and those visits were no longer supervised.
The father has attended to collect the child but the mother has chosen not to be present and has arranged for her sister to hand the child over to the father. The father has also chosen to be accompanied by a member of his family when he collects the child as he says that he does not wish the mother to be in a position to make false allegations about events which occur at changeover.
The matter came before the Court for hearing on 16 June 2014. The mother represented herself.
A Family Report had been prepared and a Family Consultant (“the Family Consultant”), was cross-examined.
The orders which the mother sought at the commencement of the hearing were set out in her affidavit. Significantly, at the commencement of the hearing, it was the mother’s position that overnight time for the child with his father should not commence until the child was five years old.
In the course of the hearing and after having heard the evidence of the Family Consultant, the mother’s position changed and in her submissions she told the Court that it was now her position that overnight time should begin immediately. She submitted that the current arrangement should continue for another six months with the exception that the Wednesday visits in alternate weeks should be extended to an overnight visit. After six months she proposed that the overnights on Wednesdays should cease and the overnight visit should instead take place on Saturday in each alternate week. She proposed that after six months of overnight visits on Saturdays, that is in one year, the Saturday visit should be extended to two nights to include Friday from 5 pm until Sunday at 5pm.
The father sought orders which were partially in accordance with the Family Consultant’s recommendations. However, the father also sought an order that when the child was settled at school that he should live with each parent on a week about basis.
THE ISSUES
The mother in the interviews for the purpose of the preparation of the Family Report, alleged that there had been family violence from the father towards her.
She alleged that the father, at least in the past, had used marijuana.
The father alleged that the mother at times consumed alcohol to excess. However, the evidence of that consumption was limited on the father’s affidavit to one instance. In any event, the father did not cavil with the notion that the child should live primarily with his mother at least until the second half of the child’s first year at school.
The mother sought an order that she have sole parental responsibility for the child. In the course of cross-examination, it became clear that she agreed that the father should be consulted in relation to major long term decisions about the child and that both parents should make those decisions together.
The mother asked that she and the father alone attend changeovers. The father asked that another person accompany him.
ALLEGATIONS OF FAMILY VIOLENCE
In the course of the interviews for the preparation of the Family Report the Family Consultant notes the mother’s allegations as follows:
[The mother] claims that [the father] was physically violent towards her on a number of occasions during their relationship, including an incident in which she claims that [the father] attempted to strangle her to the point that she could not breathe, causing “red marks, to her chest and throat.” She also alleges that he was verbally abusive towards her, including alleged threats to kill her, her family and [the child] if she ever left him. [The mother] said that there has been no further such threats since separation. [The mother] reported her concerns about family violence to the police but there were no police records available for the preparation of this report.
The mother in the affidavit upon which she relied at trial sworn by her on 14 April 2014 says “I haven’t told any lies about the violence”. She included no evidence about family violence in the affidavit.
The mother’s father in his affidavit also sworn on 14 April 2014 confirmed that the mother had, after separation, gone to the police station to discuss the issue of family violence.
No documents were produced in answer to a subpoena to the New South Wales Commissioner of Police (“the Commissioner”) that related to family violence.
The mother relied on a number of matters which arose from the documents produced by the Commissioner.
The mother brought to the Court’s attention an incident which took place on 7 April 2006. The records produced by the Commissioner indicate that the father and his brother were drinking at a tavern and watching the Friday night football. They became involved in an argument. They were ejected from the tavern and collected by their father. There was a further incident outside the tavern but the police records make it clear that it is difficult to establish what happened as the versions of each of the persons involved are greatly different.
The next day the alleged victim told the police that he did not want to assist any further and he was not willing to attend court or provide any further information. No charges arose out of this incident.
The mother was not present and this could not be described as an incident of family violence.
On 14 November 2009 the father and his brother were involved in an incident at a club. Police records indicate that the father and his brother were asked to leave the club and retaliated aggressively. The father in cross-examination said that he and his brother were set upon by twelve security officers at the club. Whatever may be the truth of this incident, no charges were laid.
The mother was not present. The incident could not constitute an incident of family violence.
The father’s mother gave evidence in relation to the allegation, made to the Family Consultant, that the father tried to strangle the mother, causing red marks on her throat. The father’s mother said that the alleged incident took place at a time when the mother and the father were staying with the father’s parents in a caravan during a holiday. The father’s mother said that she did not, in the close confines of the caravan in which they were all staying, see any red marks on the mother’s throat.
On the evidence before me and the denials of the father and his mother in cross-examination, I cannot conclude that there was family violence between the mother and the father, as the mother alleged to the Family Consultant.
There is neither allegation nor evidence that any alleged family violence involved the child.
The mother gave evidence that she wants all future communications between her and the father to occur by telephone to her mobile phone. She said that was preferable to the current arrangement where the parents write in a communication book and use, respectively, her sister’s email address and Ms M’s email address, if necessary.
The mother also gave evidence that, when the child starts school, the long school holidays should be equally shared in a three week block for each parent.
It is the mother’s application that the father should attend alone to collect the child from her at the beginning of his time and should bring the child back to her alone. She objects to any other person being present or involved in the handovers.
In the light of her position, both in relation to handovers and to telephone communication, it is difficult to conclude that the mother has any fear of the father.
The allegations of family violence are not made out on the evidence.
FATHER’S ALLEGED DRUG USE
The father in cross-examination said that although he had used marijuana in the past he no longer used marijuana.
The father underwent a urine test on 28 May 2012. The report dated 1 June 2012 states that marijuana was detected. The father said that he had not used cannabis for about two months prior to the testing and that he believed that the testing revealed residual marijuana in his system.
Further testing results were annexed to an affidavit of the father sworn 7 September 2012. The father was tested on 12 June 2012, 26 June 2012, 13 August 2012, 2 September 2012 and all of those tests were negative for the use of marijuana.
The father was tested again at the request of the mother on 7 March 2013 and 3 May 2013 and those tests were also negative in relation to the use of marijuana.
I accept that the father used marijuana in the past but I also accept that he is not currently using marijuana.
THE FATHER’S DRIVING RECORD
The mother cross-examined the father about his driving record. The relevance of his driving record was not clear in circumstances where it was the mother’s application that the father be solely responsible for transporting the child when the child was spending time with him.
The father’s driving records produced by the Commissioner relate to two separate incidents involving the father. On 15 October 2012 the father was involved in a motor vehicle accident. The records produced by the Commissioner indicate that the father was at fault, having initially stopped at a red light but then drove through the red light.
The second incident, to which the mother refers, occurred on 12 March 2012. The father was recorded by police to have been speeding variously between 150 kph and 160 to 175 kph. The father agreed that this had occurred but said that he had never exceeded the speed limit when the child was in his car.
I do not consider that the father’s traffic record is such as to be a consideration in determining what time the child should spend with him and this is particularly in circumstances where it is the mother’s application that the father is to attend alone both to collect the child at the beginning of his time and to return him at the end of his time. It cannot be the case that the mother believes that the father ought not to be driving, or to be driving with the child in the car, in those circumstances.
CHANGEOVERS
The parents agree that changeover should take place at the Business C store at Suburb B on occasions when the child is not collected from or delivered to school.
The mother proposes that only the parents attend at changeover. The father opposes this application and says he wants to be accompanied by another adult to prevent the mother making false allegations about his behaviour.
Each parent acknowledges that there may be times when a parent is unable to attend and they agree that another adult with whom the child is comfortable should be substituted.
It could only benefit the child to see his parents interacting in a polite and pleasant manner. For his sake, they both need to ensure that happens. As the Family Consultant pointed out in her report, if the parents genuinely want what is best for the child, they need to find a way to manage their differences or the child will be the person who suffers the consequences as he becomes older and more aware.
For those reasons, it would be appropriate for the parents to manage the changeovers between them, without third parties’ being present. In the event that either parent is accompanied to a changeover, then the accompanying person should not be within 50 metres of the changeover.
THE COMMUNICATION BOOK
Both parents were of the view that the communications book was unhelpful. Having read so much of the book as was annexed to the father’s most recent affidavit, I agree. The book has often been used as a vehicle for criticism, rather than a means to pass on to the other parent information about the child.
In the absence of a communication book, the parties will use the telephone, including text messages, to provide information, each to the other, about the child.
CONSIDERATION
It is not disputed that the child will benefit from having a meaningful relationship with both of his parents. The consideration for the Court is how this can best be achieved having regard to the child’s age.
The child is three and a half and has expressed no relevant views.
The Family Consultant who conducted interviews for the report almost a year ago recorded that the child’s relationship with his mother was consistent with what would be expected for a child of his age and a parent who has been his primary carer for the majority of his life. The Family Consultant reports:
[The child] presented as comfortable with his mother. He was observed to smile and laugh during interactions with his mother and he appeared comfortable to explore and play with a variety of activities.
In relation to the child’s relationship with his father, the Family Consultant reported that the child cried after being separated from his mother. Observing the child with his father the Family Consultant noted that the father was able to settle the child when he was distressed and commented “Such behaviour suggests that (the father) has been able to develop a relationship with [the child] whereby [the child] is learning to use his father as source of emotional support and comfort.” The Family Consultant also noted that the child presented as content and happy when he returned to the Court after having spent the lunch break with his father and the paternal family.
In the period of time between the interviews for the Report and the hearing, the requirement that the father’s time with the child be supervised has been dispensed with. There was available to the Court, a volume of contemporary notes produced: firstly in the communication book; secondly by the mother’s sister who attended to changeovers; and thirdly by the father’s mother who was often present when the child was in his father’s care. Nothing in any of those notes gave any cause for concern in relation to the child’s relationship with his father.
The father, according to the Family Consultant, “struggles to understand (the mother’s) resistance to his spending time with [the child].” He wants to be an involved parent and, in interview with the Family Consultant questioned whether the mother’s attitude to his spending time with the child would improve.
In her oral evidence the mother said, in some distress, that it is hard to be a parent who has been the child’s carer when “someone tries to take him away”.
The Family Consultant reports that the mother presented in interview as a reserved by determined person who continues to be concerned about the child spending time with his father. The mother told the Family Consultant that she does not like the current arrangements, that is, the child spending time with his father during the day only and in supervision, but that the arrangements were “Okay”.
The mother identified no current concerns in relation to the child’s adjustment to the parenting regime which was then in place but expressed ongoing fears about whether the father and the paternal family would take the child from her.
On the day of the interviews with the Family Consultant, the mother initially objected to the Family Consultant’s suggestion that the child spend the lunch break with his father and, despite the context of the interviews taking place within the Court, she expressed a concern that the father and his parents might not return the child.
The mother agreed in December 2013 that the father’s time with the child should be unsupervised and that is a positive step on her part.
In the course of the hearing the mother maintained throughout her evidence that the father should not have any overnight time with the child until he was five years old. It was also her evidence that the current arrangements, that is, that the child spends time with his father on Mondays and Thursdays between 10am and 2pm and on Saturdays between 10 am and 3pm in the first week of each fortnight, and from 10am to noon in the second week of each fortnight should continue at least until the child is five years old. That position quickly changed to the mother proposing that overnight time should start immediately but should be restricted to one overnight each fortnight. When the mother was asked to explain why one overnight each fortnight would be more appropriate for the child than one overnight each week her answer was “That’s what every other dad has.”
The mother disputed the father’s evidence that he had attended two parenting courses and suggested, in answer to questions, that he might have manufactured the certificates himself.
The mother objected to the child spending any holiday time with the father until such time as the child starts school.
In cross-examination the mother put to the father that he had made her pregnant so that he could ultimately take the baby away from her. The father vehemently denied that suggestion.
In the interviews for the preparation of the Family Report, in her questions put to the father and in her responses to cross-examination, the mother was uniformly critical of the father. Her distrust and suspicion of him is a common thread in her entries in the communication book.
After the parents separated and an agreement was made that the father would spend time with the child at a supervised contact centre, the mother stopped the arrangement.
The mother’s entirely negative attitude about the father gives rise to concerns about her objectivity in considering what arrangements might best benefit the child and her ability to consider his needs in priority to her own attitude about the child’s father.
The Family Consultant records
For young children such as [the child] who have experienced the disruption of parental separation in infancy, what is optimally required is a stable base with one parent (especially where there is limited or no parental co-operation and/or other risk factors) and frequent short periods of time with the other parent so the child can develop and maintain their relationship with that person. Once this has been achieved longer periods of time including overnight time with the other parent can be contemplated without unduly stressing or compromising the child’s attachment, development and sense of security. Assessment of [the child] for these Family Report interviews, indicated that [the child] is able to separate from one parent and go to the other without undue levels of distress and it would seem that [the child] has also developed relationships whereby he is able to use both parents, and most likely also member (sic) of both extended families, as sources of security and comfort. Therefore further increases in [the child’s] time with his father, including gradually increasing periods of overnight time, could now begin to be introduced. As with all arrangement (sic) for young children, any introduction of overnight time would need to be reviewed and, if [the child] was to become unduly stressed and unable to be settled in his father’s care, [the father] would need to prepared (sic) to return [the child] to his mother early.
The Family Consultant said “Due to [the child’s] age and stage of development at the time of this report, [the father’s] proposal for week about arrangement cannot be supported.” She went on to say that an equal time arrangement could be contemplated when the child reaches school age particularly if he has adjusted well to increased time with his father and if there has been some improvement in the parental relationship.
In cross-examination, the Family Consultant confirmed her opposition to the making of an order for a week about arrangement at this time. I accept her evidence that the Court would need to know how the child has adjusted to overnight time with his father before such a step could be contemplated.
The Family Consultant recommended, in her report, that the child spend time with his father, for a period of three months, on two days each week from 10am to 5pm and on alternate Saturdays. She recommended that at the expiration of the three months overnight time should be introduced once each week and on every second Saturday. After six months, she recommended that the time on the weekends be increased to commence on Saturday morning and to end on Monday morning and then further increased so that the child was spending time with his father every second weekend from Friday afternoon until Monday morning plus one or two nights in the alternate week. That regime, she recommended should stay in place until such time as the child commenced school when school holidays could be shared.
The Family Consultant was asked to consider the mother’s proposal that the child should spend each alternate Wednesday with his father. She expressed the view that frequency was important for a child of his age and that a two week period between overnights would make it more difficult for the child to adjust to overnight time.
The Family Consultant said in her oral evidence that she would prefer that the child had one night each week with his father rather than two consecutive nights in a fortnight. She considered that the child would be more likely to adjust to separation from his mother if the separations were regular and frequent but shorter in time. The Family Consultant stressed that the adults involved need to be careful and if the child cannot be settled he should be returned to his mother. However, she also stressed that the child needs to learn that his father is a person who can comfort him.
In answer to questions asked by the solicitor for the father, the Family Consultant said that if an arrangement whereby the child spends one night each week with his father continues well for six months he could then move to two nights at the weekend.
The Family Consultant expressed the view that, for the child, moving to one night each week with his father would be a very positive move.
In her oral evidence, the Family Consultant stressed that the aim of any arrangements in relation to a child of this child’s age, and in relation to the child, was for a graduated step-by-step process, giving the child time to adjust to each step before moving on.
The parents live within approximately six kilometres of one another and there are no practical difficulties in the child’s passing between them.
It is notable that the mother’s sister, who has been responsible for attending changeovers for about the last year, said that, in her opinion, the child was ready for overnight time.
The father currently receives a disability pension having been diagnosed with an intellectual disability. He told the Court that when the child is with him he is solely responsible for the child’s care and this was confirmed by the paternal grandmother who gave evidence and was cross-examined.
The father’s entries in the communication book were in evidence and nothing in the communication book gave rise to any concern that the father is unable to care for the child on a day to day basis.
Consistently with the recommendations of the Family Consultant, the orders will provide for the child to commence overnight time with his father immediately and that time will occur each Wednesday from 10am to 5pm on Thursday. The orders will then provide for a graduated increase in time with the father so that, when the child starts school, he will be spending each Wednesday night and alternate weekends from Friday afternoon after school until school starts on Monday with his father.
EQUAL SHARED PARENTAL RESPONSIBILITY
In her report the Family Consultant said:
While it is acknowledged that [the mother] and [the father] are likely to experience practical difficulties in exercising equal shared parental responsibility together, this writer would question whether or not there are sufficient grounds to grant sole parental responsibility to one parent only. While [the child] appears to be progressing well in terms of the development of his relationships, some concerns have emerged during this assessment about other areas of [the child’s] development, particularly his speech and hearing, and it would be in [the child’s] interests for both parents to be included in an assessment of these and any recommended treatment. In the future it is also likely to be important that for both parents to be involved in [the child’s] preschool and schooling.
In her oral evidence the Family Consultant said that it was important for children to know that their parents have equal shared parental responsibility and that both are involved in decision making in relation to the child.
Having regard to the mother’s evidence to which earlier reference has been made, and the Family Consultant’s evidence, it is appropriate that the parents should have equal shared parental responsibility for the child.
There was little or no evidence from either parent which assisted in determining what machinery orders should be made in relation to day to day matters. It is necessary to make very specific orders because of the mother’s past history of insisting on strict compliance with orders. For example, although it was her position at trial that only the parents should be present at changeovers, she insisted that the father comply with an existing order that he not come within her sight.
The mother was cross-examined about the father’s proposal for Christmas time and agreed that it was appropriate.
Both parties proposed that the child should spend Mothers’ Day with the mother and Fathers’ Day with the father. It seems appropriate that the child should have the pleasure of preparing breakfast for his mother or father when he is a little older and for that reason the time will begin on Saturday evening.
The communication book contains numerous allegations that one parent has not been properly informed by the other of medical matters concerning the child. The orders address that issue by requiring information to be provided in a timely manner. The parents should bear in mind that the order that they have equal shared parental responsibility means that neither of them can make decisions in relation to the child’s health and medical treatment without the other.
In the past the mother has refused to allow the father to attend at the child’s pre-school events, relying on the provision in the orders that he was not to be in her sight. Both parents should be able to attend all functions to which parents are invited and should be free to invite other family members to attend if that is permitted by the pre-school or the school.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 July 2014.
Associate:
Date: 2 July 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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