EGGERS & DYSON

[2015] FamCA 653

FAMILY COURT OF AUSTRALIA

EGGERS & DYSON [2015] FamCA 653

FAMILY LAW – CHILDREN – Undefended hearing – Where the father has discontinued his application –Where the mother seeks orders that the child live with her and that she have sole parental responsibility for the child – Where the orders sought by the mother are not opposed by the independent children’s lawyer – Orders made as sought by the mother – Orders are silent as to the father’s time with the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C(1), 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483

APPLICANT: Mr Eggers

RESPONDENT: Ms Dyson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 5495 of 2014

DATE DELIVERED: 10 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 24 July 2015

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That the Mother have sole parental responsibility for the child B born … 2004.

2. That the child B live with the Mother.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eggers & Dyson 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 PARRAMATTA

FILE NUMBER: PAC   of 2013

Mr Eggers

Applicant

And

Ms Dyson

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of B who is 10 years old, the child of Ms Dyson (“the mother”) and Mr Eggers (“the father”).

2. The parties met in 2002 and married in 2003. The parents separated on a final basis in November 2013.

3. In November 2014, the father filed an Initiating Application in the Federal Circuit Court seeking parenting orders to the effect that he have sole parental responsibility for the child, that the child live with him and the child have supervised time with the mother.

4. The mother filed a Response on the 19 December 2014 seeking orders that she have sole parental responsibility, that the child live with her and the child have supervised time with the child.

5. On the 16 December the proceedings were transferred to this Court. The matter was listed for interim hearing on the 18 June 2015. On that day there was no appearance by the father as on the same day the father filed a Notice of Discontinuance of his Application filed in these proceedings.

6. The matter was heard on an undefended basis on 24 July 2015. At hearing, the mother sought two of the orders set out in her Response filed 19 December 2014:

   a)That the respondent mother have sole parental responsibility in relation to the child, B born in 2004;

   b)That the child live with the respondent mother.

7. The Independent Children’s Lawyer did not oppose the orders sought by the mother.

8. After consideration of the material relied orders in the terms sought by the mother were made with reasons to be delivered at a later date. These are those Reasons.

Background

1. The mother and father commenced a relationship in 2002. At this time the mother was a licensee of a retirement village and the father was a public servant.

2. In May 2003, the father was seconded to Country C for around six months. Upon the father’s return, the mother observed the father to be aggressive, quick to anger and depressed.

3. Nevertheless in 2003 the parents married.

4. In 2004, the parents’ only child, B, was born. During the mother’s pregnancy she was prescribed Effexor to assist her with a hormonal imbalance and keep her on an “even keel”. By December 2014, the mother was in a program to gradually cease taking Effexor.

5. In 2005, the mother and the child moved to Victoria for the purposes of the mother supporting her parents in difficult family circumstances. The father remained in Moama in New South Wales and travelled to the mother’s residence periodically.

6. In 2006, the mother and the child returned to New South Wales to reside with the father.

7. From the time of the child’s birth until 2009, the father was employed with the public service and the mother was the child’s primary carer.

8. In 2009, the mother commenced full-time work and both parents managed their work hours to accommodate the child’s needs. The mother continued to be the child’s primary carer “cooking, cleaning, washing, communicating with the school and supporting his social needs” and attempted to arrange her work hours to minimise the impact on the father’s work hours.

9. In 2012, the mother became very concerned about the father’s mental health and observed that he was quick-tempered. She observed that for two to three months the father took sick leave from work and recalled the father saying to her “[t]he doctor says that I have severe depression and anxiety. He has prescribed medication for me but I won’t take it.”

10. In the Child Dispute Conference Memorandum to the Court dated 16 December 2014, on interview with the family consultant, the father denied that he had any mental health difficulties but said that he had three months sick leave from work while at college due to stress associated with being the victim of bullying (Exh A).

11. In November 2013 after a difficult period the parents separated on a final basis. In the same month, the parents entered into a Parenting Plan providing that the child would live with the mother in D Town and would travel to Sydney on Friday afternoons and reside with the father over the weekend.

12. After separation the mother resided in D Town and the father resided in E Town until May 2014 when the father moved to Suburb F. the child spent time with the father on weekends in accordance with the Parenting Plan.

13. In July 2014, the mother became aware that the father had been in a car accident while working. The mother states that the father refused to take any pain medication and that the father was very quick to anger, anxious to control people and irrational.

14. In August 2014, the mother secured a three month work contract in Sydney and her mother assisted her with care of the child.

15. In September 2014, the parents had a conversation in which the father said that the child was tired and he was going to have the child’s blood tested. The mother responded that the child’s tiredness was just related to a growth spurt. The father subsequently told the mother that the child was vitamin D and iron deficient.

16. The Magellan Report reveals that reports were made to the Department of Family and Community Services (“Community Services”) around this time that the child was pale and lethargic, that the mother refused to take him to the doctor and that the child was diagnosed with vitamin D and iron deficiency when taken to the doctor by the father. These concerns were assessed as a non-significant risk of harm and the reports were closed without further assessment (Exh B).

17. The mother subsequently provided the child with the appropriate supplements and took him to the doctor who observed that the child was a “healthy little boy”.

18. In September 2014 the parents agreed to a change to the child’s care arrangements whereby, commencing at the beginning of Term 4 2014, the child would live with the father in Sydney and spend time with the mother. On interview with the family consultant the mother stated it was a temporary arrangement until she completed a three month work contract and could relocate to Sydney. The father stated that it was because the mother was not coping with the child’s care and indicated that it would be a permanent arrangement (Exh A).

19. In October 2014, the child commenced living with the father and attending a new school in Sydney and spent time with the mother on Wednesday nights and weekends.

20. On or about 30 October 2014, the mother received a letter from the father’s solicitor proposing a permanent arrangement that the child live with the father and spend alternate weekends with the mother.

21. On 31 October 2014, there was an incident between the parents, which was witnessed by the child during a changeover. Both parents recounted the incident to the family consultant and both indicated that they were the assault victim and they had only pushed the other parent out of self-defence. Both parents agreed that police had taken statements from both of them and taken no further action (Exh A). It appears this same incident was reported several times to the Department of Family and Community Services by the father and on all occasions the reports were closed. The police refused to act on the mother’s request to apply for an Apprehended Violence Order for her protection.

22. On 2 November 2014, the mother did not return the child to the father’s care as previously arranged due to concerns about her and the child’s safety. On 5 November 2014, the mother’s solicitor sent the father a letter proposing that the child live with the mother and not reside with the father until mediation occurred and the father was prepared to abide by strict parenting guidelines. This proposal received no response.

23. The child has not spent any time with the father since 31 October 2014.

24. On 7 November 2014, the father closed the parties’ joint bank account, which was utilised only by the mother, and withdrew all funds from the account.

25. On 10 November 2014, the child recommenced school in D Town.

26. On 4 December 2014, the father attended the child’s school. After the child appeared frightened and was adamant he did not wish to see the father, the father was escorted from the grounds.

27. In 2015 the mother commenced working full-time in Sydney and travels to and from D Town every weekday, other than staying overnight in Sydney on Thursday nights with her partner, Mr G. Her niece, aged 18 years old, is the “full-time live-in nanny” for the child around the mother’s work commitments.

THE LAW & DISCUSSION

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode & Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA (4)).

7. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

The best interest considerations: the additional considerations s 60CC(3)

1. The additional considerations in respect of determining best interests are set out in s 60CC(3) of the Act. The relevant considerations are as follows:

Views of the child and factors underlying those views

1. The views of the child are not readily apparent to the Court. The child was not interviewed by the family consultant.

2. The mother stated to the family consultant that the child had very clear views that he did not wish to have any contact with his father. The father said that the child had sent him an email and left him a phone message saying that he did not want to see him, although the father said that he did not believe that these were not the child’s “true feelings” (Exh A). Due to the incomplete information on the child’s views and the factors underlying those views and the child’s age, limited significance is placed on the child’s purported views.

3. However the Independent Children’s Lawyer has interviewed the child at school and does not oppose the orders sought.

Nature of child’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The nature of the child’s relationship with his father is disputed. On interview with the family consultant the mother said that the child had had a very poor relationship with the father for between four or five years (when the father began to spend most weekends outside the home) and had very clear views that he did not wish to spend any time with his father.

2. The father said on interview that he and the child had an “extremely close relationship”. However, he also indicated that the child had contacted him by email and phone message that he did not want to see him and that the child had become upset and said he did not want to see him when the father visited the child at school (Exh A).

3. The child has not seen the father since October 2014, and has not had telephone contact with the father since at least November 2014. Clearly the relationship at this time is fractured.

4. The family consultant was of the opinion that there were significant concerns that the child was at high risk of becoming estranged from his father (Exh A).

5. Other than a short period in late 2014, the mother has been the child’s primary carer for most of his life and from the mother’s evidence they appear to have a close relationship.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

1. Prior to October 2014, both parents participated in long-term decision making for the child. The child lived with the mother, and regularly spent time with the father.

2. Subsequent to October 2014, the mother appears to have made decisions regarding the child, such as re-enrolling him in school in D Town.

3. The father has not spent any time with the child since October 2014, although this is at least partly due to issues about the child in his care. In June 2015, the father discontinued proceedings and makes no proposal for parental responsibility for the child, or to spend time with the child.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. Following separation other than for a short period in October 2014, the child has lived with and been maintained by the mother.

2. That the father ceased making child support payments on or around 31 October 2014. It is a matter for the mother to pursue the issue with the appropriate Agency.

Likely effect of change in the child’s circumstances

1. The mother has been the child’s primary carer for much of his life. The child has primarily lived with the mother and she has been solely been making decisions for him since October 2014.

2. The orders sought by the mother will not change the child’s current circumstances.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. The mother continues to live in D Town and the father in Sydney. After separation and until October 2014, travelling between the parent’s residences was not in issue, and the mother routinely travels to Sydney for work. It is unlikely that there is any significant practical difficulty or significant expense involved in spending time or communicating with the other parent.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

1. The mother believes that the father had severe post-traumatic stress disorder, depression and was angry, controlling and irrational. On interview with the family consultant the father denied that he had any mental health difficulties. The father did however confirm that he had required professional support after he returned from Country C and had three months leave from work in around 2012 due to stress. The mother ceased contact between the child and the father after the 31 October 2014 incident which she described as a “game-changer” due to concerns about the father’s mental health.

2. The family consultant reported that on multiple occasions the father made reference to protecting his “lawful interests” and appeared highly focussed on this issue when trying to have a child-focussed discussion (Exh A), which may suggest a limited capacity to prioritise and provide for the child’s needs.

3. The father alleged to the family consultant that the mother had undiagnosed bipolar disorder, depression and that he believed her to be under the influence of amphetamines (Exh A). These allegations also appear to have been reported to the Department of Family and Community Services several times by the father and all notifications were closed (Exh B). There is no evidence to support his allegations. The mother denies that she had bipolar disorder or severe depression or that she had ever used illicit drugs. The mother advised that she had commenced taking Effexor while pregnant to keep herself on an “even keel”, was currently taking a minimal dose and working towards the cessation of the medication. Her doctor regularly assesses her mental health when she attends the doctor every six months and she reports that no doctor has suggested to her that she displays symptoms of bipolar disorder.

4. Several reports were also made to Community Services in October 2014 and November 2014 that the child was unwell in the mother’s care and vitamin D and iron deficient. These reports were assessed as non-risk of significant harm reports (Exh A). The mother feeds the child a balanced diet and has been giving him the relevant supplements. In December 2014, the mother took the child to visit a doctor who reported that the child’s pathology results were in the expected range.

5. While the father has made these various allegations, inconsistently with these allegations he also discontinued his application for the child to live with him and spend supervised time with the mother.

6. The parents have a highly conflicted and acrimonious relationship and limited capacity to successfully co-parent the child together.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. This factor has no significance in the circumstances of this matter.

Aboriginal or Torres Strait Islander background and the child’s right to enjoy their culture

1. Similarly, this factor has no significance in this matter.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. The mother has been the child’s primary carer, attending to his emotional and physical needs for much of his life.

2. While the child’s estrangement from his father is concerning, the mother has expressed that she believes she is acting protectively of the child, and has proposed mediation with the father, to which he did not respond.

3. The father has discontinued his involvement in these proceedings and is not seeking any orders in relation to parental responsibility, or for the child to live with or spend time with him.

Family violence relating to the child or a member of the child’s family

1. On interview with the family consultant, both parents said that they were extremely fearful for their and the child’s safety due to the other parent’s behaviour. 

1. Both parents recounted the incident on 31 October 2014 and indicated that they were the assault victim and that the child witnessed the incident (Exh B). On the mother’s evidence, as the mother approached the father’s car, the father’s arm came out of the window in a blocking motion and when the mother used her arm to prevent him from pushing her, the father put her wrist in a painful wrist lock. The mother attempted to bite his hand and as she did so he released his grip. The father’s hand came up and hit the mother on the lip, splitting her lip open. As the father offers no evidence to support his allegations, the mother’s account of the father’s perpetration of family violence is accepted.

2. This incident was reported to the police, however no action was taken.

3. The same incident was reported several times to the Department of Family and Community Services by the father and was either assessed as a non-risk of significant harm report, or when reported with other concerns proceeded to secondary assessment and then closed.

4. On 10 November 2014, a report to the Department of Family and Community Services repeated information regarding the incident on 31 October 2014 and alleged that the mother had previously threatened that she would have no hesitation ‘pulling the plug’ on the father or the child. The Department of Family and Community Services conducted follow up assessment and obtained further information from New South Wales Police and the child’s school. The assessment was then closed due to police holding no concerns and other higher priority matters.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. The father has discontinued his involvement in these proceedings, so making the orders as sought by the mother provides present finality. As to the issue of the fathers time there is nothing to stop him from making application in the future.

The primary considerations: section 60CC(2)

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.

   As these proceedings commenced after 7 June 2012, greater weight is to be given to the need to protect the children from harm, s 60CC (2)(b).

Section 60CC(2)(a) – the benefit to the child of a “meaningful” relationship

1. In Mazorski v Albright [2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The child’s relationship with his mother, as his primary carer, is meaningful and valuable to the child. Throughout the child’s life the mother has attended to his emotional and physical needs and the child turns to his mother for comfort and to share his concerns and successes.

4. While the mother has raised significant issues regarding the father as discussed above, they do not lead to the conclusion that it is not in the best interests of the child to have the benefit of having a meaningful relationship with the father or that a meaningful relationship is not possible. However, the father has discontinued his involvement in these proceedings and therefore no orders are made in relation to the child spending time with the father.

Section 60CC(2)(b) – need to protect the child from exposure to abuse, neglect or family violence

1. As discussed above the child was exposed to, and witnessed, the incident on 31 October 2014.

2. Moreover, the father’s allegations of the mother’s perpetration of family violence, threats against the child or neglect of the child were unsupported by evidence.

3. Given that the father has discontinued his involvement in the proceedings and neither the mother nor the Independent Children’s Lawyer makes any proposal for orders for the child to spend time with the father, it is unnecessary to consider what arrangements and safeguards when child spends time with the father would be in the child’s best interests to be protected from harm.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. In this matter the mother seeks sole parental responsibility for the child.

3. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

4. Given the parents’ extremely acrimonious relationship, their inability to communicate since November 2014 and the father’s attitude to the responsibilities of parenthood reflected in discontinuing in these proceedings, the presumption is also rebutted in circumstances where it is in the child’s best interests for the presumption not to apply and for the mother to hold sole parental responsibility. As a consequence the court is not required to consider equal or substantial and significant time (s 65DAA).

Conclusion

1. Having regard to the best interest considerations it is in the child’s best interests that orders be made that the child live with the mother and that the mother have sole parental responsibility for the child.

2. Given the father’s withdrawal from the proceedings there will be no order in relation to the child spending time with the father.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 August 2015.

Associate: 

Date:  10 August 2015