Ferry and Ferry
[2016] FCCA 3511
•4 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERRY & FERRY | [2016] FCCA 3511 |
| Catchwords: FAMILY LAW – Final parenting – spend time with arrangements – child’s best interests – where the communication between the parents is poor. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 10B, 13C, 60B, 60CA, 60CC, 60CC(2A), 60I, 60J, 61DA, 65DAA, 65DAA(5), 65F, 69ZN, 70NAE, 117 |
| Cases cited: Queensland v J L Holdings Pty Ltd [1997] HCA 1 Goode & Goode (2006) FLC 93-286 Burton & Churchin & Anor [2013] FamCAFC 180 Dylan & Dylan [2007] FamCA 842 VR & RR [2002] FamCA 320 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Other Articles Cited: The Honourable Chief Justice T F Bathurst, 2012 Forum: The Role of the Courts in the Changing Dispute Resolution Landscape, UNSW Law Journal 35(3) pp.870-888 Our Dead Behind Us: Poems by Audre Lorde 1986 |
| Applicant: | MS FERRY |
| Respondent: | MR FERRY |
| File Number: | PAC 4859 of 2014 |
| Judgment of: | Judge Harman |
| Hearing dates: | 9 August 2016 & 4 October 2016 |
| Date of Last Submission: | 4 October 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 4 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Counsel for the Respondent: | Ms Spain |
| Solicitors for the Respondent: | Andrew Harris and Associates |
| Solicitors for the Independent Children’s Lawyer: | Ms Shea of Legal Aid NSW Campbelltown Family Law |
ORDERS
All previous parenting Orders in relation to the child, X born (omitted) 2005, shall be and are hereby discharged.
The mother, Ms Ferry, and the father, Mr Ferry, shall have equal shared parental responsibility for X.
X shall live with the father.
X shall spend time with the mother as follows:
4.1During school terms, in each alternate week, from after school on Friday until before school on Wednesday;
4.2Half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years and for the purpose of this Order:
4.2.1 The first half of each school holiday period shall commence with the conclusion of school on the last day of school attendance;
4.2.2 The second half of each school holiday period shall conclude with the commencement of school on the first day of school attendance in the new school term;
4.2.3The mid-point shall be 6pm on the middle Saturday of each short school holiday period and 6pm 9 January in the Christmas school holiday period;
4.3 At Christmas as follows:
4.3.1In odd numbered years commencing 2015 from 12 noon on Christmas Day until 4pm on Boxing Day;
4.3.2In even numbered years commencing 2014 from 4:00pm on Christmas Eve until 12 noon on Christmas Day.
4.4 At Easter as follows:
4.4.1In odd numbered years commencing 2015 from 4pm on Easter Saturday until 12 noon on Easter Sunday;
4.4.2In even numbered years commencing 2016 from 12 noon on Easter Sunday until 4pm on Easter Monday;
4.5 At such other times as agreed between the parents.
For the purposes of Order 4.1, X’s time with her mother shall commence on the first Friday of each school term in even numbered years and on the second Friday of each school term in odd numbered years.
For the purposes of Orders 4 and 5, all changeovers on school days shall occur at X’s school, and otherwise the father shall deliver X to the mother’s home at the commencement of each period and/or collect X from the mother’s home at the conclusion of each period.
Notwithstanding any other Order:
7.1X shall spend time with her mother on Mother’s Day from 6pm Saturday until the commencement of school Monday and in the event that X is in her father’s care on the weekend that includes Mother’s Day, then X’s time with her father shall be suspended; and
7.2X shall spend time with her father on Father’s Day from 6pm until the commencement of school Monday and in the event that X is in her mother’s care on the weekend that includes Father’s Day, then X’s time with her mother shall be suspended.
Within 7 days of the date of these Orders, each parent shall contact Interrelate at (omitted) and arrange for:
8.1Counselling for X to support her in managing the conflict between her parents and adjusting to the parenting arrangements set out in these Orders; and
8.2Post-separation counselling for the parents to assist them:
8.2.1To improve their communication and cooperation as parents;
8.2.3To develop appropriate strategies to manage X’s behaviour; and
8.3.3To actively support and promote X’s relationship with the other parent.
For the purposes of the above Order:
9.1Each parent shall do all acts and things necessary, including completing all intake procedures and assessments required by Interrelate;
9.2Each parent shall attend counselling sessions at such frequency as requested by Interrelate and until such time as Interrelate recommends the sessions cease;
9.3Each parent shall ensure that X attends counselling sessions at such frequency as requested by Interrelate and until such time as Interrelate recommends the sessions cease;
9.4The father shall use his best endeavours to ensure that X’s older siblings (or any of them) attend counselling sessions if requested by Interrelate to do so;
9.5Each parent has leave to provide a sealed copy of these Orders, Judge Harman’s Reasons for Decision and the Family Report dated 21 August 2015 to Interrelate;
9.6Each parent shall follow all reasonable recommendations made by their counsellor or X’s counsellor at Interrelate, including attending such other programs or services recommended by that counsellor, or ensuring that X attends such other programs or services.
Each parent shall be and is hereby restrained from:
10.1Denigrating or allowing any other person to denigrate the other party or any of their family members within the presence or hearing of the child;
10.2Discussing these proceedings or any of the issues raised in these proceedings with or in the presence or hearing of X;
10.3Showing any documents in relation to these proceedings to X;
10.4Using physical discipline on X;
AND each shall use their best endeavours to ensure that no third party does so.
Each parent shall keep the other informed of their current residential address and notify the other parent within 7 days prior to any change.
Mr Ferry shall forthwith provide to Ms Ferry the telephone number for a mobile service to be used by X henceforth and, further, Mr Ferry shall:
12.1Provide to X the handset to which that telephone number is attached and shall leave the phone in X’s possession;
12.2Do all things within his power to ensure that the mobile telephone is regularly charged, in credit, switched on and able to receive telephone calls, SMS messages and IMessages;
12.3Allow X to retain the handset and telephone number and to use the handset without interruption or distraction and with privacy;
12.4Ensure, prior to providing the handset to X, that his and the mother’s details and those of X’s elder siblings are recorded on the phone and sim card as a contact.
Each parent shall permit X to communicate with the other parent and her siblings by email, SMS or IMessage at all reasonable times (not including meal times).
Each parent shall be entitled to telephone and speak with X using the above phone service between 7-7:30pm on any day that X is not and has not been in their care.
Each parent keep the other informed of their contact telephone number(s) and email address (if available) and notify the other parent within 24 hours of any change.
In the event that X suffers a significant illness or injury or is hospitalised whilst in one parent’s care, that parent shall notify the other parent as soon as practicable and provide the other parent with details of the nature of the illness or injury, the name of the hospital or medical practitioner providing treatment to X and details of any treatment or medication prescribed.
Both the mother and father shall be at liberty to obtain from any school attended by X information relating to X’s schooling, including copies of school reports and general school newsletters.
Both the mother and father shall be at liberty to attend functions and events at X’s school and to request and attend separate parent-teacher interviews at the school.
The mother shall be and hereby is authorised to request X’s school to amend their records so that the mother is recorded as an emergency contact person for X and a person who is authorised to collect X from school.
Leave is granted to the Independent Children’s Lawyer to make an Application for contribution of costs by each of the parties in accordance with Exhibit ICL2.
Dismiss the Application for costs.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
IT IS NOTED that publication of this judgment under the pseudonym Ferry & Ferry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4859 of 2014
| MS FERRY |
Applicant
And
| MR FERRY |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future parenting arrangements for a young child, X, born (omitted) 2005. X is presently 10 and will shortly turn 11 years of age.
The parties to the proceedings are X’s parents, her mother, Ms Ferry, who is the Applicant, and her father, Mr Ferry, the Respondent.
X has three elder siblings, all the children of Mr and Ms Ferry. However, there are no Orders sought with respect to those three children, indeed, two of them are beyond the Court’s jurisdiction. Those children are Ms R, Ms C and Y, aged respectively, 22, 19 (although nearly 20), and 17.
Material considered
Prior to the matter commencing, each of the parties, together with the Independent Children’s Lawyer, provided a Case Outline document. I have read each of the documents identified within those Case Outline documents. For the benefit of completeness, those documents comprise:
a)In the case of Ms Ferry, her Application Initiating Proceedings filed on 10 October 2014, a Notice of Risk filed 12 December 2014, an Affidavit sworn or affirmed 21 March 2016 and filed 22 March 2016 together with a further Affidavit sworn or affirmed 26 April 2016 and filed the same date;
b)In the case of Mr Ferry, I have read and considered his Response filed 27 November 2014, a Notice of Risk filed 3 December 2014 and Mr Ferry's Affidavit sworn or affirmed 19 April 2016 and filed the same date.
Also before the Court is a Family Report. There has been some doubt as to the date of the Report, although that confusion would appear to arise purely as the consequence of a typographical error. The Report is dated 21 August 2015 and was commissioned pursuant to an Order made on 15 December 2014.
a)There are also a number of other Exhibits before the Court comprising:
b)Exhibit A1 – the certificate of completion of a Family Counselling program undertaken by Ms Ferry;
c)Exhibit A2 – a letter evidencing completion of a Triple P parenting program;
d)Exhibit A3 – a further certificate of completion of a Family Counselling service;
e)Exhibit R1 – a Minute of Order sought by Mr Ferry;
f)Exhibit ICL1 – a Minute of Order sought by the Independent Children’s Lawyer with respect to the substantive parenting proceedings; and,
g)Exhibit ICL2 – a Minute setting out the calculation of costs that are sought by the Independent Children’s Lawyer in these proceedings.
I propose to deal with the parenting aspect of the proceedings first and to finality and to then deal with the Application for costs.
History of proceedings
These proceedings were, unfortunately, (although it is not a criticism of Ms Ferry), commenced without the parties attending or attempting to attend Family Dispute Resolution. An exemption from attendance was granted by a Registrar and I do not cavil with the basis upon which that determination was made, save and except, that there is no evidence to suggest compliance with section 60J of the Family Law Act 1975. Certainly, the principles espoused in section 60I(1) of the Act, make clear that it is the intent of Parliament that parents will, where possible, attempt to resolve parenting issues between themselves without recourse to the Court.
I am also conscious of that opined by retired US Supreme Court Justice Sandra Day O’Connor J:
The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternate methods of resolving disputes have been considered and tried.
The parties have, during the course of the proceedings, attended Family Dispute Resolution and that has assisted them, it would appear, in at least limiting the issues in dispute, although they have not resolved the totality of their controversy. During the course of the proceedings, and as will be discussed shortly, Orders have also been made for the parties to participate in Family Counselling services.
Two Orders for Family Counselling have been made. One Order required the parties to engage with a Family Relationship Centre whilst the second Order required the parties to complete an online program, UpToParents.org. Both of those Orders were made pursuant to section 13C of the Act, investing the Court with jurisdiction to require one or both of the parties to participate in Family Counselling, Family Dispute Resolution or an appropriate course, program or other service.
The desire of Parliament to have parties receive such therapeutic and educative assistance is made clear by the explanatory memorandum to the 2006 amendments and by section 65F of the Act which precludes the Court making a final parenting Order in relation to a child unless the parties have attended Family Counselling to discuss the matter to which the proceedings relate (or the Court is satisfied that one or more of the exemptions regarding that obligation apply). Exceptions exist on similar bases to those which exist with respect to attendance at Family Dispute Resolution pursuant to section 60I of the Act.
As indicated and as evidenced by the Exhibits tendered in her case, Ms Ferry has attended those services to which she was referred by Order. Mr Ferry has completed the online UpToParents program, but has not engaged in any service through the Family Relationship Centre. That is regrettable for a number of reasons.
Firstly, Mr Ferry was clear in his evidence during cross-examination that he had made inquiries at the Family Relationship Centre, but as they could not offer him services which fitted in with work, he felt that he was unable to attend. It is ironic that both parties have been able to attend all Court events without impediment as a consequence of their employment commitments.
Secondly, and perhaps more importantly, the purpose and the intent of Family Counselling services is to assist parties to become better parents or, more germanely in this case, better co-parents. That much is apparent from the definition of Family Counselling in section 10B of the Act, defining the role of a Family Counsellor as being to help parties deal with personal and interpersonal issues or to assist children affected by separation. That assist might well be in furtherance of the principles in section 69ZN of the Act and, in particular, the principle that parents should be able to engage in co-operative and child-focused parenting.
A significant portion of the evidence and is spoken to significantly during submissions particularly on behalf of Ms Ferry, is an issue relating to concerns as to how completely that co-parenting co-operation is achieved by these parents.
It certainly could not be suggested that the exemptions or inferred exemptions to attendance at Family Dispute Resolution before final parenting Orders are made, apply in this case. Nor could it be suggested that urgency applies. Thus, one course open to the Court would be to adjourn the proceedings until such time as Family Counselling has been completed by Mr Ferry.
I do not propose to take that course nor am I urged to by the parties or the Independent Children’s Lawyer. It would inflict further delay upon these parties and they have already been significantly delayed, including by circumstances well and truly beyond their control. It would not further the interests of young X to inflict further delay.
As is discussed at some length, particularly by Kirby J in a number of High Court authorities, principle amongst them, Queensland v J L Holdings Pty Ltd [1997] HCA 1, there is a “cost” to litigation. That cost goes beyond financial cost. It includes the inability to move on with life, lives placed on hold, ongoing tensions and conflicts as a consequence of proceedings continuing and the like. All of those circumstances are clear in my mind in determining that the matter should be concluded.
However, further Orders will be made for the parties to engage with Family Counselling services. As was discussed by the Full Court of the Family Court of Australia in Tate & Tate(No.3) (2003) FLC 93-138, an interlocutory Order or direction of this nature, (although their Honours comprising the plurality of the Full Court of the Family Court of Australia in Tate & Tate were dealing with Orders or directions for filing of documents in preparation for trial) are, nonetheless, Orders of the Court and the Court expects compliance. Any failure to comply with Family Counselling Orders is difficult, in that, non-compliance potentially perpetrates and continues difficulties which are assessed as being contrary to the child’s best interests. Thus, there is an obligation on the parties to do something positive to effect change – to be instruments of change in not only their lives but, importantly, in the lives of their child.
As was opined by the Family Report Writer during her cross-examination, engagement in such services may assist in changing behaviour, even if not underlying beliefs and attitudes. It is that change which young X requires in her life to enable her to achieve her full potential and the full benefit of the Orders that will be made by this Court. The Orders that will be made are intended and designed to achieve support and facilitate a meaningful relationship between young X, her parents and her siblings. I will not labour those issues further, although they must be returned to in addressing the legislative pathway.
The proceedings were commenced by an Application Initiating proceedings filed by Ms Ferry on 10 October 2014. That Application was filed in the Family Court of Australia. On the first return date of the proceedings before the Family Court of Australia, namely, 25 November 2014, a number of Orders were made by consent with respect to X’s living arrangements. Those Orders provided that X would live with her father and spend time with her mother each alternate weekend from Saturday until Sunday and for a period during each school holidays from Wednesday until the following Saturday. Orders were also made to facilitate time on Mother’s Day, Christmas Day and Easter as well as a number of other Orders which might be referred to as specific issues Orders. The proceedings were then otherwise transferred to this Court.
The proceedings first came before this Court on 15 December 2014. On that date, and in addition to the Family Counselling Orders referred to above, Orders were made commissioning a Family Report and appointing an Independent Children’s Lawyer to represent the interests of young X.
On 21 August 2015, the proceedings returned before the Court again. On that date, the Family Report was released, having only become available the afternoon prior. On the basis that the Report had been released and to avoid further delay, hearing dates were fixed, albeit, quite some months after that date.
The proceedings came before the Court on 2 May 2016 to commence what was scheduled to be a two day hearing. The matter proceeded for the day. The matter could not resume on the second day, 3 May, due to the hospitalisation of the docketed Judge. The proceedings were thus, adjourned for resumption and to complete day two of the matter on 9 August 2016. The matter could not be completed on that day as a significant period was spent, and it is far from a criticism of the parties or the Independent Children’s Lawyer, in seeking to negotiate an agreed set of arrangements for young X.
Those negotiations were largely but not completely successful. The parties returned before the Court to indicate that whilst the matter was not resolved on a final basis, a great many things had been agreed, not the least of which was the agreement by these parents that an arrangement whereby X would spend nine days and nights per fortnight with one parent and five days and nights per fortnight with the other was agreed. The parties, unfortunately, were not able to agree as to who would spend the nine days with X and who would spend the five. Thus, the matter was adjourned to today, 4 October, 2016 to enable the matter to conclude. The evidence and submissions have concluded and Judgment is now given.
Evidence
I do not propose to discuss the evidence that is led by each of the parties in great detail. Each of the parties have been required for cross-examination as has been the Family Report Writer. All of that evidence, spread across an entire two days, need not be canvassed in detail. There is much commonality between the parties and many of the areas, which on their face present as contested, either do not bear directly upon decisions which the Court must make or are, by the conclusion of the evidence, far more agreed than when the matter commenced.
I propose to incorporate the chronology of events as are provided in the Case Outline documents of the Independent Children’s Lawyer and each of the parties. I incorporate all three, not for the sake of repetition, but to ensure that there is a relative mutuality of fact. The parties agree on the majority of issues relating to their relationship and separation as well as the care arrangements for their children prior to their separation.
Applicant’s Chronology
DATE EVENT SOURCE (omitted) 1960 Respondent father born, currently 55 years of age AM:2 (omitted) 1965 Applicant mother born, currently 50 years of age. AM:1 (omitted) 1993 The parties marry. AM:4 1993 The parties commenced living together. AM:4 (omitted) 1994 Ms R born, currently aged 21 AM:3 (omitted) 1996 Ms C born, currently aged 19 AM:3 1998 The child Ms C was not meeting all her milestones. AM:7 (omitted) 1999 Y born, currently aged 16 AM:3 2002 The child Ms C is diagnosed with Irlen Dyslexia by Mr D. AM:7 (omitted) 2005 Subject child X born, currently aged 10 AM:3 Early 2011 X commences kindergarten at (omitted) in (omitted). AM:9 Mid-2011 Applicant mother commences casual work as a (occupation omitted) at (employer omitted) in (omitted). AM:9 2012 The Respondent father tells the older children that the only reason that him and the mother argue and fight is because of them. AM:19 27/01/2013 The Applicant mother tells the Respondent father that she has had enough and is leaving. AM:10 Early February 2013 The Applicant mother tells the Respondent father that she doesn’t want to leave and the Respondent tells her that she needs to leave otherwise him and the children will move to another house and that the children do not want her. AM:11 Early 2013 The Respondent father yelled at the child Ms R as she had left her hair straightener on in her room. The Applicant hears Ms R scream and goes to check on her and sees a red mark on her forearm which shortly after forms a blister. AM:12 11/03/2013 The Applicant mother leaves the matrimonial home and moves into a granny flat in (omitted). The Respondent remains in the matrimonial home with the children. AM:14 March 2013 The Applicant mother starts seeing a psychologist by the name of Mr S. AM:14 Mid 2013 The Respondent father’s anger worsened towards the Applicant mother. AM:20 Mid-2013 The Respondent father would not allow the Applicant mother to see the children unless the Applicant needed to pick something up from the home. AM:21 July 2013 The parties reached an agreement that the child X can see the mother for two nights a fortnight. AM:22 July 2013 The Applicant mother contacts the children’s school to obtain a copy of the child Y’s reports. The school advises the mother that they will get in touch with her. The mother speaks to the Principal of the school and the Principal advises that both the father and the children have written letters asking that she not receive any information about them. The mother also finds out that she has been removed as an emergency contact person. AM:26 July 2013 The child X spends time with the Applicant mother. X appears incredibly upset about what the mother has discussed with the father. X locks herself in the bathroom crying and in the foetal position saying that she is now in trouble with her father because of this. X asks the mother if she gets to talk to someone. The mother tells X that she will speak to her father. The mother sent a text message to the father asking if X can see someone to help her and the father replies “it is all your fault and I do not have the money”. AM:31 August 2013 The child X has a visit with her mother. X discloses to the mother that she has told her father that she wants to live with the mother and that she wants to talk to someone about her problems. The father tells X that her mother is telling her that she has problems. AM:32 (omitted) 2013 The Respondent father allows the Applicant mother to spend time with the child Y for only half an hour for his birthday at the father’s home. AM:21 (omitted) 2013 The Respondent father allows the Applicant mother to spend time with the child Ms R for half an hour for her birthday at the father’s home. AM:21 2/11/2013 The child discloses to the mother that her father told her that if she is having any dramas with her mother to call 000. AM:35 (omitted) 2013 The Respondent father allows the Applicant mother to spend time with the child X from 11am to 3.30pm on her birthday. AM:21 24/12/2013 The Applicant mother provided presents to X after her visit to provide to the other children. The children advise the mother that they like their presents and they wish to keep them however the father said to the children that they should not keep presents from people they do not like so the children rewrapped them. AM:27 March/April 2014 The child X is to spend time with the mother for this weekend. The mother sends a text to the Respondent father asking to have the child for an extra day however the Respondent father advises that he doesn’t want the mother to have an extra day with the child. AM:23 23/08/2014 The Applicant mother provides X with a present to give to Y. She waits on the veranda as she had also brought a cake for Y. Y advises her that he doesn’t want to take the cake from her as if he does it means that he will have to have a relationship with the mother and he doesn’t want her. AM:28 (omitted) 2014 The parties attend X's Holy Communion. Throughout the course of the day the child Ms C attempts to block the mother from looking at or speaking to X. AM:38 1/11/2014 X stays with the mother for the weekend at Wollongong which was arranged by (omitted) Family Services as the mother was going to be serving the father with her Initiating Application and wasn’t sure as to how he would react to this. X appeared distressed and worried once she found this out as she didn’t want to get into trouble by the father. AM:39-40 2/11/2014 The Applicant sends a text message to the father advising that she will be dropping off X to school on Monday. The Applicant accidently left her phone on silent and did not know that she had received phone calls from the father advising that he was not agreeable to this as X did not have any school clothes with her. The mother ended up taking the child to school. AM:41-42 6/11/2014 The Applicant mother attends the child X’s school to visit her before school. She waits 20 minutes and the child still has not come outside of her classroom so the mother asks X’s friend if they have seen her and they reply by saying that they hadn’t. She then observes the father to be at the school so waits in another classroom. Once the father had left she then asks the teacher if she could speak to X. X isn’t her usual self and discloses that everyone is telling her that she now has to attend court. The mother reassures her. AM:43 10/11/2014 The Applicant mother sent a message to the father about picking up X at a different time as she has an early shift. She receives no reply. AM:44 13/11/2014 The Applicant mother sent a message to the father requesting to spend time with X on Friday however the father had said no as X has school work to do. AM:45 14/11/2014 The Applicant mother sent a message to the father to request to spend time with X. She then attends upon the father’s home and the father advises that X still has school work to do. AM:46 18/11/2014 The Applicant mother attends upon X’s school to check on her. X asks the mother if she has been crying as the Judge said that she isn’t allowed to come over anymore. The mother reassures X that the Judge didn’t say that. AM:47 November 2014 The Applicant mother requests to spend time with X on the weekend commencing 21/11/2014 however the father refuses. AM:48 21/11/2014 The Applicant mother attends Ms C’s year 12 formal. She stood away from the father with X holding her hand. The father was looking at the mother unhappy as he has previously expressed that he doesn’t like when X displays physical affection towards the mother. AM:49 25/11/2014 The parties reach interim consent orders at the Federal Circuit Court which provide for X to spend time with the mother each alternate Saturday. AM:50 (omitted) 2014 The Applicant mother has X in her care for a period of time today for her birthday. They attend (omitted) as the mother said that she is buying X a pet fish for her birthday. The mother is running late to drop X back to her father so asks X to call her father. The father gives the mother a time to return X. The mother offers the father make up time however he refuses. AM:53 2014 The Applicant mother attends the father’s home to drop X off after her visit. She sees Ms R at the veranda and observes Ms R to have bruises and finger marks on her arm. She asks Ms R what happened and Ms R replies “nothing worse than what you used to do”. The mother speaks to the father about this and the father becomes defensive. AM:29 2014 The Applicant mother asks X what happened to Ms R and X responds “dad grabbed Ms R, they were fighting and he pushed her into the kitchen area”. AM:29 7/02/2015 The Applicant mother took X to the pool for her spend time with period. During the course of the afternoon X kept saying that the mother needs to hurry as she is wasting time. AM:55 11/02/2015 The Respondent father sent a text message to the Applicant mother asking to swap weekends as he wishes to take X to a father daughter camp. The mother agreed to this. AM:56 12/02/2015 The Respondent father contacts the mother to offer her makeup time the coming weekend however due to the late notice the mother asks the father for the following weekend and he advises “I think that will work”. AM:57 16/02/2015 The Applicant mother asks the father if she can spend time with X this evening however he refuses and says that she decided not to have X this weekend. AM:58 28/02/2015 The Applicant mother has X in her spend time with visit. X asks if the mother could pick up her sunglasses and Nintendo DS from her father’s home. The mother calls the father’s home and asks the father if they can pick up these belongings. The father refuses. The father calls X on her phone and asks where she is as he is out the front with her sunglasses. By this stage the mother had returned home with X and the father refused to drop the sunglasses off. AM:59 1/03/2015 The mother asks X to cut her nails as they appear long. X advises that she couldn’t as last time she got into trouble with her father and the father has advised her that it is the mother’s fault that she got an infected toe nail. AM:61 21/03/2015 X states to the mother that she is fat for a year 4 girl and that none of the other year 4 girls are as fat as her. The mother reassures her that this is not the case and X says that her father tells her that she is chubby. AM:64 21/03/2015 During the evening X forgot to call her father. This is not in the court orders but the father has stated to X that she needs to call him when she is with her mother. This makes X feel pressured that if she does not do so she will get into trouble. AM:65 10/04/2015 The Applicant mother and the child X are preparing to travel to drive down the coast to visit the grandmother when X wanted to take her Nintendo DS with her so she contacts the father. The mother tells X not to worry and she can use the Ipad. X tells the mother that her father said to her that he will do the right thing and bring it around because her mother obviously does not care for her like she says she does. AM:69 2/05/2015 The child X asks the mother why she takes tablets and mentions that she spoke with Y and he informed her that she takes tablets due to a mental illness she was born with. The mother tells X that she does have a mental illness which is due to having a sad time with the father and kids but is okay now. X tells the mother that she thinks she her mother is ok now. AM:70 3/05/2015 The mother is driving X to changeover when X informs her that she likes being with her mother and that she can’t wait to be an adult so she doesn’t have to go through this anymore. AM:71 7/05/2015 The mother wakes up to find X cuddling her. They talk about different issues including that the father’s abusive behavior towards the children. AM:74 30/05/2015 X informed the mother that she said to her father that she doesn’t know what a family is like. The father told her that she has a brother, sisters and a dad but not a mother. AM:75 28/06/2015 X discloses that she continues to sleep in the same bed as her father. She said that she wishes to go back to sleeping in her own bed but they need to clean up her room and my desk which they still haven’t done AM:78 28/06/2016 The child Y collects X from changeover. Y became angry at the way that the mother had dressed X and said to X that she is not her mother. AM:79 1/07/2015 The father calls X during her visit with her mother. He asks X to try and have a good time to which X responds that she will. The father continues to argue with X saying that she won’t have a good time because he is not around. AM:81 4/07/2015 The father calls X as she is eating dinner. X is unable to answer so the mother answers the phone to advise the father that she is eating dinner and X will be home shortly. The father informs the mother that she is supposed to have X home by 6pm however the mother advises that it is 7pm as per the court orders and provides a photo of these orders to the father. AM:83 16/07/2015 The mother calls to speak to X however she is advised by Y that she is in bed and is sick. AM:84 22/07/2015 The mother calls to speak to X. X advises that she had three days off school because she couldn’t hear the teacher and her ear hurt as she had an infection behind her ear drum. AM:85 25/07/2015 X states to the mother that she is stressed out about the court proceedings as her father has been making comments about this such as that if the mother wins then he will have to pay the mother money. X also expresses that she is concerned about having to speak to the family consultant and Independent Children’s Lawyer. AM:86 21/08/2015 Family Report released. Family Report 13/11/2015 The mother receives a text message from the father before the spend time with visit advising that X has been sick for the last 2 days and he will advise her if she is going to be better for her visit tomorrow. AM:88 14/11/2015 The mother has not heard from the father about X spending time with her so she sends the father a text message at 8.46am. The father responds that X is tired and it doesn’t look good as yet. X walks out to the mother’s car a short time later. She informs the mother that the father didn’t wake her up in time. AM:89 27/11/2015 The mother receives a text message from Y advising that he doesn’t want the mother to attend his school formal and that he doesn’t want to have a relationship with her. AM:90 28/11/2015 The mother receives a text message from the father indicating that X has a rash all over her body and X isn’t sure if she should come to the mother’s house. AM:91 1/12/2015 The mother’s solicitors send correspondence to the father about the mother spending extra time with X. This request was denied. AM:93 1/12/2015 The mother sends several text messages to the father requesting an update on X’s rash. AM:93 2/12/2015 The mother becomes aware that X still has not returned to school and is concerned about her. The mother sends a text message to the father asking for an update on X’s health. The father informs her that he is the one who will make the decisions with respect to X. AM:93 11/12/2015 The mother receives a text message from the father advising that X will be attending a friend’s birthday party during the mother’s spend time with visit and the mother needs to organise the birthday present. AM:95 24/12/2015 The mother receives a text message from the father advising that the changeover arrangements have now been changed. The mother did not agree to this. AM:97 9/01/2016 The mother receives a text message from the father in respect to changeover arrangements. The father informs the mother that Y will be taking X for changeover. The mother does not feel comfortable about this arrangement due to the fact that the children have to walk the streets at 7pm at night. AM:98 2/02/2016 The mother’s solicitor sends correspondence to the father in relation to the changeover arrangements AM:99 23/01/2016 X complains about an itchy scalp when in the mother’s care. The mother discovers head lice and eggs in X’s hair so removes them and notifies the father however does not receive a response. AM:102 Mid-January 2015 The mother makes numerous attempts to contact X on her mobile phone however her calls go unanswered. AM:103 28/01/2016 The mother sends a text message to the father advising that she has been attempting to contact X but has had no success and wishes for the father to facilitate this. No response is received until very late at night. AM:103 29/01/2016 The mother requests to speak with X this evening and askes the father what time. She receives no response. AM:104 6/02/2016 The mother is on her way to the changeover location when she sees Y and X walking in the rain. She asks them both to get in the car as it is raining but Y refuses and continues to mention that they are to meet at the “meeting place”. AM:108 6/02/2015 X arrives back at the mother’s house and is getting ready for bed. She checks over her bed for nits as the father has told her that she got this from the mother and if she gets them again he will get angry. AM:109 6/02/2016 The mother informs X that she has been trying to call her. X advises that her phone was in her father’s room charging and it looks like her messages have been deleted. AM:112 6/02/2016 The mother checks X’s hair again as X has been complaining of it being itchy. The mother finds a few more eggs and sends the father a photograph of this. The father doesn’t believe what the mother says that it is and blames the mother for X getting nits. AM:113 6/02/2016 X calls her father and the mother could hear the father blaming her for X having nits and also saying that she doesn’t feed X properly or give her enough to drink and all that she wants is his money. AM:114 7/02/2016 X advises the mother that her father has been talking a lot about her since they have moved. Saying such things as that she used to come home and bash the father. AM:115 8/03/2016 The parties attend a Legal Aid mediation conference. AM:116
Respondent’s Chronology
Date Event Source – Affidavit of the father filed 9 April 2016 (omitted) 1960 Respondent Father born Para #1 (omitted) 1965 Applicant Mother born Para #2 In or around 1986 Parties meet Para #7 (omitted) 1993 Parties marry and commence living together in (omitted) apartment Para #7 (omitted) 1994 Mother falls pregnant with Ms R, parties move to (omitted) Para #8 (omitted)
1994
Ms R born Para #4 In or around late 1994 Mother stops working after birth of Ms R. Para #10 (omitted) 1996 Ms C born Para #4 (omitted) 1999 Y born Para #4 In or around late 2002 Family moves to (omitted). Para #11 (omitted)
2005X born Para #3 In or around 2009-2010 Ms R and Y tell Father that the mother threatened them with a 250mm bladed knife stating to them words to the effect of, "I will stab you to shut you up" and "I will kill you." Para #25 In or around 2010 • Mother hits Ms R with a ruler while she is doing her homework.
• Mother chases Ms R down the hall and then hits her with a shoe before Father could intervene.
Para # 16 and 18 In or around 2011-2012 Mother hits Y across the face and on the back with a shoe for refusing to do something he was asked. Para #20 In or around early 2013 Mother tells the children on numerous occasions, that she is going to the (omitted) to commit suicide. Para #34 In or around early 2013 • The parties have an argument over the way in which the Mother was speaking and treating Y. Argument culminates in the Mother walking over to X and saying words to the effect of, "Do you know how long it has been since your father has had sex with me?"
• Father says to the Mother words to the effect of, "That is no way to speak to a seven year old, what are you thinking?"
• The Mother then becomes violent towards the Father and hits him. The Father holds both the Mother's arms in an attempt to calm her down, saying to her words to effect of, "Wake up to yourself."
• The Father then turns to walk away, however the Mother strikes the Father on the back of the head and the right arm that he raised to protect himself, with a pizza tray.
• The incident was witnessed by Y and X.
Para #40-47 February 2013 Father and Mother separate on a final basis Para #5 In or around August 2013 Father and Mother attend mediation at Family Relationships Australia in (omitted), in order to facilitate time the Mother will spend with X. However, nothing formal was ever signed. Para #60 In or around September 2013
- December 2013
Father and Mother attend two further mediations at Family Relationships Australia. Para #62 25 December
2013
• Parties agree X will spend time up until lunch time with the Father and siblings then spend the evening with the Mother. The Mother is to drop X back to the family home between 6:00pm
- 6:30pm.
• Father telephones Mother at around 6:00pm. The Mother does not answer his calls. The Father drives to the Mother's residence at around 6: 15pm however the Mother's car is not there.
• The Mother calls the Father at around 8:00pm informing him she will drop X back to the family home for around 8pm after X is given her 'Christmas Dinner', the Father agrees.
• At around 7:45pm the Mother telephones the Father to inform him that she and X are at a friend's place in (omitted). The Mother requests that he come to collect X, the Father agrees.
• After the Father collects X he asked if she had eaten to which she replied words to the effect of, "Chicken nuggets, that's it."
Para #63-66 1 November 2014 • X is with the Mother. The Mother telephones the father on Sunday evening to say she will take X to school the following day and not return her to the Father at 7:15am as previously agreed.
• The Father tries to contact the Mother but she does not answer.
• The Mother does not take X to school on time so the Father makes a report to (omitted) police.
• The Mother delivers X to school at 1:15pm.
Para #67 -82 25 November
2014
Parties agree on interim orders whereby X lives with the Father and spends time with the Mother each alternate weekend from 9am Saturday to 7pm Sunday during term time and each alternate Wednesday from 9am Wednesday to 7pm on Saturday during holidays Para #85 December 2015 The Father and children move to (omitted) Para #90 March 2016 X commences spending additional time with the Mother each alternate Wednesday from 4pm to 6pm Para #89 Independent Children’s Lawyer’s Chronology
Date Event Ref (omitted) 1960 DOB of the father, Mr Ferry (currently aged 55).
(omitted) 1965 DOB of the mother, Ms Ferry (currently aged 50).
(omitted) 1993 Date of marriage.
(omitted) 1994 DOB of adult sibling, Ms R (currently aged 21).
(omitted) 1996 DOB of adult sibling, Ms C (currently aged 19).
(omitted) 1999 DOB of sibling, Y (currently aged 16).
(omitted) 2005 DOB of the child, X (currently aged 10 years 4 months).
Approx Feb 2013
Father contends parties separate on a final basis. F 5 11/3/13 Parties physically separate. Mother moves out of former matrimonial home. Children remain with the father.
July 2013 Parties agree that X will spend time with the mother for 2 nights per fortnight, Sat – Mon.
M 22 10/10/14 Mother files Initiating Application seeking orders for sole parental responsibility; that X live with her and spend alternate weekends and half school holidays with the father.
1 – 3 Nov 2014
Mother takes X to (omitted) for the weekend without the father’s knowledge or consent, and does not return her to the father’s home before school as previously agreed.
M 39 – 42
F 67 – 793/11/14 – 27/11/14
X spends no time with her mother. F 82 25/11/14 ORDERS are made by consent by Judge Harman, including:
· X to live with the father.
· X to spend time with the mother:
o During school terms, each alternate weekend from Sat 9 am to Sun 7 pm.
o During school holidays, each alternate week from Weds 9 am to Sat 7 pm.
o Special occasions
· Restraints on denigration, physical discipline, discussing proceedings/allegations, or exposing X to family violence.
12/12/14 Mother files Notice of Child Abuse, Family Violence or Risk of Family Violence.
15/12/14 ORDERS are made by Judge Harman, including:
· Parties to contact Interrelate (omitted) to assess suitable for family counselling and FDR.
· Parties to register with (omitted) and complete online program.
· ICL appointed.
· Family Report to be prepared.
21/8/15 ORDERS are made by Judge Harman, including:
· Listed for final hearing 2-3 May 2016.
· Trial directions
Date of Family Report of Ms J, Reg 7 Family Consultant
Mar 2016 Father contends that X commences spending time with her mother each alternate Wednesday from 4 pm – 6 pm.
F 89 2/5/16 Day 1 of final hearing before Judge Harman.
Mr Ferry concedes that, for the majority of the relationship, the preponderance of day-to-day, hands-on practical parenting was undertaken by Ms Ferry. That is not to suggest that Mr Ferry concedes that he had little or no involvement in the children’s care – far from it. He was very much an active parent. It is simply that mathematically, his involvement in the children’s day-to-day arrangements was less than that of Ms Ferry.
The parties separated in mid-2013. There would appear to have been a build-up of circumstances of an alarming nature in the household prior to that separation. I do not describe them as alarming to seek to apportion culpability to one parent or the other for the ultimate disintegration of their relationship. The events are described as alarming as that is the impact they had upon the parents and, more importantly, these four children.
There were a number of occasions leading up to the separation of these parties whereby the mother would leave the home, making statements which if, not intended to be a direct reference to suicidality, may well have been interpreted or apprehended by Mr Ferry or the children or one or more of them as threats of self-harm. Thankfully, no such behaviour was engaged in, although clearly distress was occasioned to all.
I do not refer to those issues, difficult and painful as they would be for Ms Ferry, to seek to castigate her, blame her or make her feel guilty for any impact that has flowed, whether to herself or others. At the time of those utterances there was clearly, what might be described in the vernacular, a powder keg of tensions developing within the household. Not the least of those difficulties related to a fundamental issue in this case, being what is described throughout the Family Report as punitive behaviour by Ms Ferry towards the children, particularly the three eldest children, Ms R, Ms C and Y, or what might be better described as excessive physical discipline and chastisement of the children.
Ms Ferry is clear in her evidence that she undertook the majority, indeed, the preponderance of day-to-day parenting for these children and that the children, particularly Ms R, Ms C and Y were not always easy to parent. They would be argumentative, answer back, obstreperous and disobedient. That often resulted in frustration, what is referred to in closing submissions as Ms Ferry’s “old fashioned” ways of discipline.
Ms Ferry’s discipline moved beyond that which might be expected as reasonable chastisement, at times involving striking one or more of the children with objects, certainly including a ruler, possibly a shoe, slapping Y to the face on at least one, if not more, occasions, pushing and striking the children to various parts of their person. These are matters which have, at the present time, led to Ms R, Ms C and Y rejecting a relationship with their mother.
It is not suggested that Mr Ferry did not have a role to play within the household and with respect to those behaviours nor that he does not continue to have such a role.
Ms Ferry gives evidence that she felt undermined and certainly unsupported in her attempts to deal with and manage the children’s behaviours during the relationship. That may well be so whether as to her perception, reality or both. However, the actions that are complained of, particularly by Ms R, Ms C and Y, all three of whom participated in the Family Report interviews and, thus, had the opportunity to directly relate their complaints as it were, are the actions and behaviours of Ms Ferry.
Ms Ferry acknowledges with some humility and real strength of character, her regret for those behaviours. Ms Ferry has evidenced her regret and remorse, not only through speaking it, but through taking action to address those behaviours such as to be an instrument of change for herself. The reality remains, however, that those three children are somewhat estranged from their mother at this time, to the point that there are complaints in various portions of the evidence that Y has been rude to his mother at changeovers, yelling at her and being disrespectful and derogatory in the comments that he has made. Similar complaints are made with respect to Ms R.
With respect to Ms C, there would appear to be some hope. On one occasion, Ms C came upon her mother at a shopping centre and pleasant exchanges occurred between them albeit, somewhat strained, they having not seen or spent any real time with each other, let alone communicated for some months, if not years prior thereto. That engagement sadly, came to an end when Mr Ferry arrived and Ms C then, whether through a sense of loyalty, embarrassment or otherwise, withdrew from her mother. The relationship between Ms R and Y at this point in time is largely broken down. However, for Ms C, there is some hope, although the practice of that relationship is very much in malaise.
Young X’s arrangements since these parents separated some 3 and half years ago, have largely comprised her ongoing residence with her father and siblings and visiting her mother. Those visits initially were brief and limited. Ms Ferry indicates that she would see X when she would go to the home to collect items, although she discontinued that practice predominantly as a consequence of behaviours towards her by Y and to a lesser extent, Ms R. It was also an arrangement which was largely unsustainable and uncomfortable for both.
By the point of separation, these parents had developed very different styles in dealing with each other. Ms Ferry, as is described by the Family Report Writer, is somewhat anxious if not at the point of separation at least, depressed. Ms Ferry had sought to take steps to acknowledge this and to address and receive assistance for how she was feeling. That comprised, at one point in the relationship, a number of attendances, no more than six, upon a psychiatrist or psychologist who was providing good support and assistance. However, Ms Ferry gives evidence that this was discontinued after complaint by Mr Ferry that it was costing too much money and that it was money that the family did not have or could better use. Accordingly, events continued to spiral until the point of crisis in mid-2013.
After some months, X began to spend time with her mother away from the home, although it was generally for limited periods of time. By the time that the matter came before this Court in late 2014, some 18 months after separation, that practice of time had developed into alternate weekends from Saturday till Sunday, together with brief periods of time after school or by Ms Ferry attending at X’s school as a parent helper.
During the course of the matter, those time periods have extended, so that the weekends now comprise two nights. However, arrangements are still each alternate weekend and with limited periods during each school holiday period, a block period from Wednesday to Saturday is occurring during school holidays.
Ms Ferry and perhaps more importantly, all four children, have raised complaints as to physical discipline and chastisement by Mr Ferry. They are suggested certainly at the time of the Family Report interviews in July 2015, to be current complaints although Mr Ferry disavows those complaints and suggests that it has been some years and was certainly prior to separation since there has been physical contact made by him with the children or any of them.
It is conceded that there had certainly been loud and vocal arguments between Mr Ferry and one or more of the children, usually Ms R, now an adult of 22 years and with a significant parenting involvement with respect to X undertaken by Ms R. However, whilst those arguments and comments made therein might well fall within the section 4AB definition of family violence in the Act, they are not matters which are suggested to be of such moment as to warrant or require any protective action by this Court. The parties are in agreement that Orders should be made, such that X will spend nine nights with one parent and five with the other without any further restraint, constriction or tampering such as supervision.
By the close of evidence neither parent submits that the Court would be satisfied that an unacceptable risk exists for X from or in the household of either parent. Each suggests that there are certainly matters of concern with respect to the other. I will flesh those out, as it were, in dealing with that opined by the Family Report Writer. I will do so shortly.
For the mother’s part, she suggests that her relationship with X is in real peril if X remains living predominantly in the father’s household as a consequence of derogatory comments and criticisms made, not only by Mr Ferry, but by the three elder children to whom young X looks up to and with whom she clearly enjoys a close relationship. There is the risk raised that some degree of violence, in its broad sense and as defined in the Act, including physical violence or raised voices, criticisms, comments and the like, will continue and that X will be disadvantaged by those behaviours. That is also spoken to by the Family Consultant during their cross-examination.
For the father’s part, he raises concerns and complaints, firstly, that Ms Ferry is less well able to deal with and address X’s need, including her educational and emotional needs. Secondly, Mr Ferry complains that Ms Ferry’s accommodation is such that it will create problems for X as she grows older, it being small and cramped and, thus, described as somewhat inadequate for a young girl entering adolescence who will want privacy and may find some embarrassment or impediment in being unable to invite friends to the home. Thirdly, it is complained that the mother may, to use the language of the submission, return to her old ways of discipline, although neither party suggests that either parent has ever engaged in any significant physical chastisement of X. Those allegations would appear to be largely, if not solely, confined to the older children.
Thus, the dispute between these parties is framed.
As indicated, I do not propose to discuss the evidence in greater detail. It is not necessary and much of it is agreed. That which is set out in the chronologies incorporated above is largely supported by the evidence led by the party who raises the allegation. Thus, and to the extent that controversy might arise in other fora, findings of fact are made in accordance with that alleged by each parent, each having demonstrated that they are a witness of credibility.
Certainly during his cross-examination, Mr Ferry, on a number of occasions responded to questions in a fashion that suggested some lack of insight into X’s needs, particularly relating to derogatory comments made to X by either Mr Ferry or the three adult or near adult children. Mr Ferry’s attitude towards supporting the relationship between those three elder children and their mother leaves something to be desired, although I do not propose to castigate Mr Ferry or engage in further criticism of him. The criticism is validly raised, but it must also be seen as regards Ms R, Ms C and Y’s attitudes towards their mother, at this point in their lives, as arising from their lived experience of their mother.
Certainly, there is the risk, as is submitted on behalf of Ms Ferry, that this lack of support might flow through to X’s relationship with her mother. There is that risk, although I am satisfied the risk is very much different to the risks that apply and pertain to Ms R, Ms C and Y’s relationship with their mother. X has not experienced or is not particularly cognisant of the vast majority of difficulties and complaints that are raised by Ms R, Ms C and Y.
Certainly, Ms Ferry adopts and accepts the criticisms that are made regarding her action and reaction whilst frustrated in her parenting role prior to separation. I accept that Ms Ferry was trying to parent this household of four young children and with less than abundant assistance provided, not only through absence for employment purposes, but also very different attitudes to parenting demonstrated by Mr Ferry. However, the issues that arise are very much perceptional. Whether Ms Ferry is remorseful and whether Ms Ferry was moved to inappropriate action by frustration is not really the concern in this inquiry. The concern is the impact that events have had upon the elder children and, thus, it is somewhat explicable that they now reject a relationship with their mother.
I propose to turn to and discuss the factual background of the matter by reference to the Family Report. In doing so, I make clear that I am conscious that there is no magic in a Family Report. It is an important part of the evidence. I am not bound by recommendations that are offered by a Family Consultant. That is not to suggest that I dismiss or treat the evidence as inferior. I simply refer to the evidence contained within the Report as neither party complains that they are inaccurately reported. It thus is a convenient and largely agreed point for setting the parameters of the factual disputes between these parties.
At paragraphs 2 and 3 of the Report, each parent gives their recollection and remembrance of the relationship. Ms Ferry, at paragraph 2, Reports that Mr Ferry was emotionally and financially controlling towards her during the relationship and was controlling and physically punitive towards the children. This is denied by Mr Ferry who claims that Ms Ferry was often physically violent towards him.
Certainly, that which is stated by the children, and especially the three elder children, corroborates those concerns expressed by Mr Ferry as regards violence towards them. Both of the parents agree that Ms Ferry was often physically punitive with the three elder children, particularly when they were younger and continuing into the earlier part of their adolescent years. Ms Ferry reports that this was due to feeling overwhelmed as the main carer of the children, as to which there is no controversy (paragraph 3).
Following the separation of the parties in early to mid-2013, the arrangements for practice of relationship between X and her mother were limited.
The three elder children have never practiced their relationship with the mother post-separation in any meaningful way (see paragraph 5). The arrangement for even frugal periods of time was fairly short-lived and from July 2013, X was spending one to two nights per fortnight with her mother, as well as blocks in the holidays, an arrangement which continued until about the time that these proceedings were commenced (see paragraph 5). The arrangement then became more problematic and reduced slightly, becoming fixed as alternate weekends for one night only.
Corresponding with the commencement of the proceedings was the retention of X for one night beyond that which had been agreed between these parents, being Friday to Sunday ordinarily. X was kept until Monday and then was taken to a McDonald’s restaurant where the mother met with the mother’s counsellor. It would seem that X also met with another counsellor, although the attendance at McDonald’s was not purposive of that intervention, and X then, later in the day, went to school. That sequence of events would appear to have created a dispute between these parties beyond all prior proportions.
On the first return date of the proceedings, as indicated, the parties, to their great credit, were able to put an arrangement in place, although it would seem, as is opined by Ms Ferry, that that largely came about as accepting what she was offered and taking what she could get, time having broken down altogether between that weekend in October 2014 and the first return date.
The parties’ work arrangements are set out principally at paragraph 8 of the Report. Mr Ferry works as a (occupation omitted) for a (employer omitted) company and works varying rosters on a fortnightly cycle. Thus, the elder children, and in particular Ms R and Y, have a significant role to play in assisting with X’s day-to-day care arrangements when Mr Ferry is working. I make clear that I am not critical of Mr Ferry for that. Families do what they need to do to survive, to cope and to function, and that is what occurs for this household to run smoothly.
Ms Ferry, having left the former matrimonial home, has obtained relatively modest accommodation consistent with her income. Ms Ferry works limited shifts in her chosen career in the medical profession. She has during the relationship lost or allowed her registration to expire, not through malpractice but purely the effluxion of time. As a consequence, her skills have downgraded in the relationship and her ability to obtain work or work in a job that is as well-paying as she once had is reduced. That has the benefit at least, that Ms Ferry is available to spend time on a weekly basis with X’s school.
The parties live 5 to 10 minutes’ drive apart and each has transport available. There is no issue as to the geographical proximity of the parties.
The proposals of the parties, as set out in paragraphs 11 to 13 of the Report, bear little relationship to that which is now proposed, save and except that Ms Ferry proposes that she would have the predominant care of X and Mr Ferry proposes that he would.
At the time of the Family Report interviews each parent had proposed relatively frugal one or two night alternate weekend time with the other. Each now agrees that the arrangement should be a substantial and significant arrangement of nine nights with one parent and five with the other.
At paragraph 14 of the Report, a number of issues are set out as being in dispute. Noteworthy amongst that discussion is a complaint by Ms Ferry that X is, or was, frightened of her father, and a complaint by Mr Ferry that Ms Ferry paid inadequate attention to X’s health and education.
I make clear from the outset that there is no evidence to support either of those concerns. The principal issue with respect to Ms Ferry’s inadequate attention to X’s homework is the reality that she does not have the internet connected in the one bedroom granny flat in which she is living. Whether Ms Ferry can afford to have the internet connected is not a determinant of her capacity nor her willingness to meet the child’s educational needs.
At paragraph 25 of the Report, the Report Writer sets out Ms Ferry’s expressed distress regarding her past “punitive behaviour” towards the three elder children. She is described as reporting that she feels ashamed and distressed about that behaviour and the fact that, presumably as a consequence, the elder children do not have any contact with her. It is conceded by Ms Ferry that she had spanked X about two times and also regretted that, although it would seem from the totality of evidence that neither of these parents has engaged in significant physical chastisement of X.
At paragraphs 27 and 28 of the Report, a number of matters are set out regarding the steps that Ms Ferry has taken to acknowledge and own her behaviour and to address it as an instrument of change in her own life. Ms Ferry is to be commended for that insight and her actions taken to address those concerns.
At paragraph 35 of the Report, Mr Ferry is reported as raising concerns for the children’s past punitive treatment by their mother and also conceding that he had engaged in a degree of physical chastisement of the children as well, albeit far less on his report.
At paragraphs 43 and 44 of the Report, a number of matters are raised regarding negative and derogatory comments made to, or heard by, X whilst in the father’s household. Mr Ferry, at paragraph 43, suggests that X is not exposed to negative comments. It was conceded during cross-examination that, whilst not necessarily directly engaged in conversation, X has in all probability, overheard comments made, sometimes by Mr Ferry but, more frequently, by X’s elder siblings.
At paragraphs 49 to 62, the Family Consultant sets out that which arose from an interview with X and from observation of X with each of her parents and with her three siblings. What is striking regarding that portion of the Report is that X is very clear in expressing her love and warmth for both of her parents as well as her siblings. At paragraph 50, it is described that she was significantly worried about hurting her parents’ feelings and “pleaded with the Regulation 7 Family Consultant to try not to hurt their feelings. She became a little tearful.” She was reassured that she need not express any view or talk about things she did not wish to. That would appear to have achieved some positive reassurance for the girl.
X was very clear that she wished to spend more time with her mother than she then was, being one night each alternate weekend. She described that both of her parents could be angry at times, although her knowledge of that which had transpired between her parents and the elder siblings was limited.
In observations with all, she was observed as demonstrating the same warmth and affection with each parent and with her siblings. There was no fear observed and there was nothing remarkable or out of the ordinary. X was simply observed as being a little girl who loved both of her parents and wished to be able to continue to practice a relationship with both of her parents.
Under the heading “Evaluation”, it is made clear that:
X gives strong impression she wants to spend more time with her mother. Both Mr Ferry and Ms Ferry agree that Ms Ferry was the children’s main carer during the time she lived in the home and it is likely that Ms Ferry is a significant and, possibly, primary attachment figure for X. It is therefore understandable that X would be experiencing some distress about not being with her.
It is then opined that it would be beneficial for X to spend more time with her mother, albeit with the caveat added, “In a way that does not place X at risk”. Again, I make clear for the benefit of these parents, that whilst it is not agitated to be so, that even if it were so agitated, the evidence does not support a finding that X is at risk or exposed to an unacceptable risk in the care of either parent. There is the concern raised by the Report Writer that risk might arise from behaviours towards X, as had occurred previously with her elder siblings at about the age X now is and entering her adolescence.
I am not concerned and, again, it would not appear to be agitated, that such behaviour is probable. That arises on a number of bases, not the least of which is Ms Ferry’s acknowledgement of that past behaviour and that it was unacceptable. By reference to that set out by Tree J in Johns & Jasapas [2016] FamCA 471 and adopting the test opined by Murphy J referred to therein, there is some confidence as to an absence of risk. Further, Ms Ferry has taken action to seek to address behaviour through anger management and other programs.
The reality remains, however, that X has lived with her siblings and father for now approaching four years. I make clear, as the Full Court of the Family Court of Australia set out in Goode & Goode (2006) FLC 93-286, that status quo, if it might be so referred to, is not the determining issue in any case. Whether an arrangement has applied for a significant period of time or not does not determine the issue. It is useful to know and it assists the Court in assessing the likely benefit or disadvantage to a child of that arrangement continuing. However, all arrangements will be determined prospectively and by reference to the evidence.
At paragraph 89 of the Report, the Family Report Writer opines that nothing was observed to suggest X as being fearful of either parent, although concern was expressed by X regarding her parents’ feelings and that she was clearly aware of the feelings of her parents towards each other. It is not elaborated upon whether that is more pronounced as regards one parent or the other.
At paragraph 90 of the Report, the Family Report Writer raises what might be described as a concern that if X lives predominantly with Mr Ferry his attitudes and behaviours towards her will play an important role in her sense of well-being and comfort about her situation. That was spoken to at length during cross-examination as to the possible impact upon this little girl’s sense of self, self-esteem, confidence and general functioning and performance in life if she continues to hear derogatory comments from Mr Ferry or her siblings and no action is taken to ameliorate those behaviours.
It is also expressed that X may experience divided loyalties regarding her parents and that this would cause her some real stress. Indeed, that is a stress impacted by her siblings and the attitudes that they hold and express towards their mother, X’s mother. The Family Report Writer was clear that a continuation of those behaviours has the real potential to impact upon X’s happiness and functioning but also has the potential to drive her to make a decision for herself either through loyalty to her mother (and thus rejecting her father and siblings) or becoming resentful towards her mother as a consequence of the adverse effects that she experiences through the arrangement that would be practised of spending time with her mother and thereby missing her siblings with whom she has a close relationship.
I do not propose to canvass the evidence further. I will return to and touch upon aspects of the evidence in addressing the legislative pathway. I will do so for illustrative purposes, not to suggest that portions of the evidence to which I will henceforth refer are the only matters considered by me.
Legislative pathway
The Court is reminded by section 60CA of the Act that in all that is done the child’s best interests are the paramount consideration.
I must then turn to the objects and principles in section 60B of the Act which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is required to make Orders that ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests; and
b)Protecting children from physical or psychological harm through being subjected to or exposed to abuse, neglect or family violence.
Abuse and family violence are defined in sections 4 and 4AB of the Act respectively. Both parents have clearly engaged in behaviour which would fall within the definition of one or both of the above terms. That behaviour, however, is historical. There is nothing at present which would fall within those definitions save the derogatory comments that are made of Ms Ferry by Mr Ferry and/or the elder children, particularly Ms R and Y. They are not here to speak. Those children (now adults) certainly, as I have observed, have a lived experience which will have impacted upon, if not substantially formed, the views that they now hold about their mother, whether that can ever be dealt with or addressed cannot be determined. That is a matter for those young persons as they enter adulthood and become more mature to determine for themselves whether they wish to address that relationship. Beyond that, however, there is no suggestion that these children would be, at present or in the foreseeable future, exposed to abuse or violence.
Neglect is not defined in the Act. It must thus, be given its common English usage. The parenting of each of these parents is far from neglectful. Neither parent neglects the children’s needs and I am satisfied that proposition holds true as regards Ms Ferry’s address of young X’s health and education. Both parents do a good job.
As regards ensuring that young X has the benefit of both parents having a meaningful involvement in her life to the maximum extent consistent with her best interests, I am conscious that the proposals of each parent and of the Independent Children’s Lawyer would enable and permit a meaningful involvement to a significant extent. The parents do not propose that an Order for equal time be made. That was canvassed and contemplated at one point, it would seem by Ms Ferry, although in the Family Report interviews she makes clear that she has reconsidered that position and in particular, having been advised as she disclosed during cross-examination, that for an equal time arrangement to successfully operate for X, these parents would need good communication, something they agree that they do not presently have.
The meaningful involvement that X can enjoy with each parent can be achieved by either proposal. It is a matter of which parent will have the predominant involvement. Both parents will be involved as they wish and desire to be involved and will devote themselves to ensuring that it is so.
The objects, thus, do not assist greatly in differentiating between the proposals of each of the parents and that advanced by the Independent Children’s Lawyer largely corresponding with the proposals of Mr Ferry.
The objects also require that children receive adequate and proper parenting as a consequence of any Order that is made by the Court and that parents fulfil their duties and meet their responsibilities. This Court need make no Order to achieve those ends, save and accept, to the extent that Orders for further counselling will be made to assist these parties in providing co-operative parenting or at least, parenting largely if not, entirely absent derogatory comments towards the other. Otherwise, these parents will willingly meet their responsibilities and duties.
The principles underlying the objects create certain rights for young X. They are not absolute rights. They are subject to the caveat, that they are not enlivened or practised when the Court finds that it would be contrary to X’s best interests. X has a right to know and be cared for by both of her parents and a right to spend time on a regular basis and communicate on a regular basis with both of her parents and other people significant to her care, welfare and development.
The Orders that are proposed by each of the parents and, in the case of the Independent Children’s Lawyer, supporting Mr Ferry’s primary proposal, will allow and permit X to know and be cared by both parents far more abundantly than has been the case to date. The Orders, no matter which proposal is ultimately preferred, will enable both parents to spend time and communicate with X on a regular basis.
The proposals of Mr Ferry, supported by the Independent Children’s Lawyer, will far more abundantly permit young X to spend time and communicate with her siblings, people of real significance to her than Ms Ferry’s proposals. During her cross-examination, Ms Ferry conceded fairly, frankly and appropriately that the probability of the three elder children engaging with her in the foreseeable future was limited.
It was put to Ms Ferry that it was not in X’s best interests to separate her from her siblings. Ms Ferry responded to the effect, “I would never stop them seeing her. They can visit when they want.” It was then put to Ms Ferry that, “They won’t come to see you, will they?” Ms Ferry agreed that this was unlikely. The simple reality is that the practice of relationship between X and her siblings will occur predominantly if not solely through the father and their engagement with him or in his household.
All three of the elder children presently live in that household, although, as is submitted on behalf of Ms Ferry, it is unlikely that this will continue for any significant period of time as these children grow older. Whether they continue to live there for a lengthy period or a short period cannot be ascertained. What can be clearly ascertained is that these children will not engage with their sister in their mother’s care. Or if they do so, it will be as disadvantageous as it had been in the past when Y was involved, for example, in changeovers with his mother which led to yelling, abuse and derogatory comments by Y of his mother in X’s presence. That would be disadvantageous to X and ultimately, to her relationships with each of her parents and her siblings. The principles, thus, provide some support to the position of Mr Ferry and the Independent Children’s Lawyer.
X also has a right to have her parents share duties and responsibilities and agree about future parenting. They are rights that will largely be and have largely been for most of her life pre-dating separation, denied to her. Mr and Ms Ferry do not agree on many things. They have differences regarding observance of faith and religious practice. They have many differences in their personalities and styles of parenting.
Those differences, by and of themselves, are not bad things. X gets the opportunity to be parented by two parents who have much to offer her, albeit, that her mother is far more anxious and reserved and careful and her father perhaps more abrupt. As African American poet Audre Lorde has written, “It is not our differences that divide us. It is our inability to recognize, accept, and celebrate those differences”.
Those different styles, however, are not the basis upon which these parents cannot agree. What is at play in that regard cannot be ascertained, but the parties’ engagement with Family Counselling services may have assisted them and will in the future, no doubt, assist them.
As Bathurst CJ has opined, albeit, in the context of mediation, even unwilling participants when made to participate, might become willing participants. Accordingly, if these parents are made to sit down in a Family Counselling program, not necessarily together or face to face, but receiving the same information and assistance then they may well, even if they feel that it is an imposition upon them and their time to be there, find some real benefit possibly even, as the Family Report Writer opined, changing behaviours and recognising why it is important for X that it be so, even if not changing beliefs.
In any event, to the extent that the principles and thus, X’s rights can be properly achieved or protected through any Order made by this Court, they are perhaps better protected or achieved albeit, a slight balance, through the Orders proposed by Mr Ferry and the Independent Children’s Lawyer.
I must then turn to the presumption of equal shared parental responsibility set out in section 61DA of the Act and determine whether the presumption applies.
Whilst the determination of any Order to be made with respect to equal shared parental responsibility is a matter for address by reference to section 60CC of the Act, the determination of the presumption is important prior to considering the time arrangements that will apply for X. Whether the presumption applies or not is the trigger of whether section 65DAA of the Act applies or not. I will address all of the relevant evidence in relation to the Order for equal shared parental responsibility that should be made, but at this time, observe that it would be difficult for the presumption to be preserved and applied.
There is concession that family violence has been occasioned by each parent towards the children if not towards the other. That is particularly so as regards Ms Ferry’s entirely appropriate, candid and difficult disclosures that she has engaged in behaviours towards these children, euphemistically described as punitive, but verging upon physically abusive at times. Whether the presumption applies or not does not dictate or determine whether an Order is made for equal shared parental responsibility. As indicated, that is determined by reference to section 60CC of the Act.
Lest I am wrong in the non-application of the presumption, I am satisfied that the presumption might well, in light of the poor communication conceded between these parties, be found to be rebutted. However, I am not satisfied I need proceed further as the presumption would not appear to apply and, accordingly, I am not mandated to consider equal or substantial and significant time by reference to section 65DAA of the Act. However, I propose to consider all time arrangements at large and will do so by reference to section 60CC of the Act. If the presumption of equal shared parental responsibility applies, the Court is mandated to consider those matters. However, the Court is not precluded from considering those matters through its non-application or rebuttal.
In turning to section 60CC of the Act, I must commence with the primary considerations being:
a)The benefit of 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.
The latter is prioritised over the former by subsection (2A). However, I am not satisfied that the latter is in play. There is no evidence upon which the Court is asked to make any finding of unacceptable risk. I am not satisfied that there is any need for this Court to make any Order other than, perhaps, a broad non-denigration Order and Orders pursuant to section 13C of the Act for the parties to be provided with some assistance in developing the co-operative parenting strategies necessary to protect X. There is no agitated concern that X requires protection from physical or psychological harm through exposure to or subjection to abuse, neglect or family violence.
That leaves in play the benefit to X of having a meaningful relationship with both parents. At this point, the consideration under section 60CC(2)(a) is limited to the parents rather than others, (see, for example, Burton & Churchin & Anor [2013] FamCAFC 180). The proposals of each parent will enable X to continue a meaningful relationship with each parent. X presently has a meaningful relationship with each parent.
To the extent that ongoing denigration of the mother in the father’s household, whether from the father or from X’s elder siblings, impacts upon X this might suggest that the benefit of X’s meaningful relationship with her mother is or could potentially be eroded. That was addressed by the Family Report Writer in her evidence. She opined that there were two possibilities in play: one, that X would, if such derogatory comments continued, become more solidly loyal with her mother and, thus, rejecting the father and her siblings, or secondly, that it might result in arrangements breaking down and young X becoming very much aligned with her father and the members of his household. Thus, it is not as simple as it might appear at first blush.
It is not that one follows the other like night follows day. There is real potential for disadvantage to X if those behaviours continue. However, to date, they would not appear to have eroded X’s meaningful relationship with her mother at all. One important reason for that might well be that X has a very different lived experience of her mother from her siblings.
Whilst Ms R and Y in particular are vocal in their complaints, criticisms and recalling of past events, which comments X is clearly aware of, X has not shared that experience of her mother. She has not been slapped in the face, hit with rulers or other of the behaviours that those children have experienced and complain of. Thus, I am satisfied that to date, X’s relationship and meaningful relationship with her mother has not been eroded by those behaviours. That does not approve of them nor make them appropriate. They are far from appropriate.
Anything that would cause this young girl to experience a negative view of her mother is disadvantageous, in the same way that anything that would cause her to develop a negative view of her father or her siblings would be disadvantageous. They are all important people to her. However, I am satisfied that the primary consideration, the benefit to X of a meaningful relationship with both parents is equally achieved by the proposal of either parent and by that proposed by the Independent Children’s Lawyer.
Additional considerations
Views
There is no clear view expressed by X in the Family Report, nor in any of the evidence. Certainly, the mother opines that X has expressed to her a clear and positive view to come and live with her on a full time basis. Mr Ferry, similarly opines that she has expressed that very same view in converse to him. The Family Report does not contain any clearly expressed view of X other than a very real desire to spend more time with her mother than she was, it being remembered that at the time of Family Report interviews she was spending each alternate weekend for one night with her mother and a period during school holidays.
It is not a criticism of the Family Report Writer that such views have not been elicited. I have included in the above discussion that which is reported, commencing at paragraph 49 of the Report, as to X’s presentation. X knew full well why she was at the Report interviews. She did not wish to hurt either of her parents by expressing a view that she was fully aware either parent might find distaste with. That is unfortunate. What it does tell me is that this little girl is clearly aware of the disputes between her parents and perhaps inappropriately so.
However, it does not assist me in ascertaining, or inferring that she has a clear view as to the parent with whom she would live. What I can clearly take from that contained in paragraphs 49 to 62 of the Report is that X has a warm, close relationship with both parents and with her siblings. It is not a mathematical exercise of adding up the number of people that X loves and the team with the greatest number on their side wins. It is, however, a reality for X, because of the breakdown in the relationship between her elder siblings and her mother, that her relationship with her elder siblings will be practiced through the father and the father alone.
X is very clear that she values those relationships. She is perhaps, closer to those siblings than many children her age might be and as a consequence of the lived experience of this family. The tumult and chaos that applied prior to the separation of the parents, the events that were occurring at that time and the engagement prior to and certainly, post separation of her parents in employment, such that Ms R and Y in particular, have stepped up and played a parenting role for their younger sibling have all played a role.
As I have already made clear, I am not critical of Mr Ferry for engaging the children in that assistance, it is what this family does to get by. It is not something that is expressed by Ms R as being an impost upon her. She does not feel resentful that she needs to look after her little sister at times. She would appear to relish in that experience. It would appear to be part of what contributes to their deep and close relationship.
To that end, I am satisfied that young X’s views, such as they can be ascertained, provide slight support to the proposals of Mr Ferry and the ICL. I am also conscious at this point, although it is a somewhat mute point, in light of the primary considerations being evenly applied towards both parents as to advantage and disadvantage to X, that the additional considerations are not subservient, secondary or inferior to the primary considerations. They are simply additional.
As Carmody J had opined in Dylan & Dylan [2007] FamCA 842, whilst portions of that Judgment fell foul of the Full Court of the Family Court of Australia, the additional considerations be they singularly or in combination, might have greater weight and a greater determinative force than the primary considerations. Views are but one of those additional considerations.
Nature of the relationship of the child with each parent and other persons
There is nothing to differentiate the meaningful and affectionate relationship between X and each of her parents. There is nothing to be gained by seeking to mathematise those relationships. They are both important to this young girl. Certainly, as is opined by the Report Writer, it is possible, if not probable, that at the time of the Report interviews some 20 months ago, X’s primary attachment may well have been with her mother. Indeed, that would be expected in light of that which is conceded between these parents as to the past care arrangements for X.
However, that does not mean that her relationship with her father is not equally close. She is observed as interacting warmly and affectionately with him and importantly with her siblings. They are people who have lived with this child throughout her life to date. They are people with whom X will have long-lasting, lifelong enduring relationships well beyond the passing of her parents. They are fundamentally important relationships to her as the Family Report Writer makes clear.
The nature of relationships, based purely upon how they might be practiced in each household, supports the proposals of Mr Ferry and the Independent Children’s Lawyer. It is a simple reality for this young girl that her relationship with her siblings other than perhaps, text messages and phone calls, will not be practiced whilst she is in her mother’s care as those children will not come to the mother’s home or if they do, it will not be a productive experience as is demonstrated, particularly by the interaction of Y with his mother when he had a role to play in change-over arrangements in the past.
The extent to which each of the parents has taken, or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
Neither parent can be criticised on this level. They each engage in decision-making. Prior to the June 2012 amendments, this provision was contained in subsection (4) which also required that the Court have regard to the more negative proposition, the extent to which each parent had interfered in the other’s capacity to be involved in making decisions, spending time or communicating with the child. Ms Ferry complains in her evidence that she has been impeded, both with respect to decision-making and spending time and communicating with X. That includes through telephone calls and the like.
While certainly it is submitted that any telephone communication which has occurred has been without Court Order, there have clearly been problems with that occurring. Prospectively, that can be addressed through Orders that I propose to make which permits and enables both parents to communicate with young X whilst she is in the care of the other and which allows and permits X to communicate with both of her parents and with her siblings whilst in the care of the other, and to do so without interruption or distraction.
One would hope that this might overcome some of the difficulties. However, as regards interference, I accept that there has been certainly, as is submitted on behalf of Ms Ferry, some degree of control or over-zealous desire to oversee arrangements, such as is described in the Family Report, Mr Ferry being clear that he feels uncomfortable when he does not know where the child is whilst in the mother’s care and that he desires to know who else is in the household or involved in caring for the child whilst with Ms Ferry and the like. It is not dispositive of the dispute but it tips the balance perhaps slightly back towards Ms Ferry.
Also, prior to the June 2012 amendments, subsection (c) contains what was often referred to erroneously as the “friendly parent provision”, the extent to which each parent has supported, fostered, encouraged and facilitated the relationship between the child and the other parent. There is certainly some merit to the criticisms that are made of Mr Ferry in not supporting the relationships between all four children and their mother although, as I have struggled to make clear, this is perhaps explicably in relation to the elder children. There is little Mr Ferry can do to encourage 22 year-old Ms R to seek a relationship with her mother if she does not wish to and, in light of her lived experience and that which she complains of, for example, to the Family Report Writer.
However, more could be done if only through engaging in services which might provide some assistance. That is not to suggest that therapeutic or Family Counselling services are an end in themselves. They are not. They are designed to provide assistance to parents, in this case, parents experiencing a fairly traumatic separation with poor communication between them and, perhaps, good reason why one or both do not desire more abundant communication.
It is also impacted by derogatory comments. They must stop. They are unhelpful. They are damaging to X. If Mr Ferry, or the elder children, hold negative view of Ms Ferry, they may well have explicable basis for doing so but, as the cliché says, if one has nothing good to say, say nothing. That would be preferable to X hearing a catalogue of complaint by her elder siblings of her mother’s failings. It is X’s mother. The person she loves, respects and has a close relationship with. There is nothing to be gained by damaging that relationship. That factor, again, whilst it is no longer a statutory imperative it remains relevant, provides some support to Ms Ferry’s case.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
There is little, if any, financial assistance provided by Ms Ferry, although, that is explicable. She has very little work, very little income and most of what she earns is expended upon the very modest accommodation she occupies. Clearly, young X is supported almost wholly, if not completely, by her father and the other people within that household. It is far from dispositive, it is simply observed.
Likely effect of change, including separation from either parent of any other child or person with whom the child is living or has been living
This factor gives substantial weight to the propositions advanced by the Independent Children’s Lawyer and Mr Ferry. This is not a case where X would move to live with her mother or stay living with her father with consideration limited to those persons. X lives with her family. Prior to early to mid-2013, her family comprised both parents and all of her siblings. Since that time, she has lived with her father and her three siblings. She has lived very much with them. She is not separated from them other than when spending time with her mother and when that occurs, she is entirely separated from her father and siblings.
The break down in the relationship between the elder siblings and Ms Ferry is relatively complete at this point in time. One would hope, for the sake of all, not only X, but the adults involved, that some movement might occur in the future. However, at this time, a change so that X lived predominately with her mother would affect a separation from her siblings as well as her father. That would be disadvantageous to X. Whilst certainly her elder siblings have negative things to say about X’s mother, their own mother, they are not of such a nature as would compel that she be removed from that environment.
It is disadvantageous, but as is opined by the Report Writer, it would be disadvantageous for five nights a fortnight as much as nine nights a fortnight. And, accordingly, the detriment of those comments is very much offset by the greater detriment of separation from those with whom she has an important relationship – her siblings. That lends real support to the position advanced by the Independent Children’s Lawyer and Mr Ferry.
Practical difficulty and expense
I incorporate herein section 65DAA subsection (5) of the Act.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As already observed, these parents live remarkably close to each other. Albeit in an area well outside of this Court’s catchment. How the matter came to be before this Registry is unclear. The case may have reached a more expeditious hearing in other Registries.
These parents live close to each other. The parents are not close on other levels. They are able to implement an arrangement and each expressed real confidence that they can make a nine/five night per fortnight arrangement work and work well for X’s benefit as well as being able to provide that which is necessary for X’s care at such times as X is with them each.
Their capacity, however, to communicate and resolve difficulties is poor. There will be assistance provided as the Court has attempted to provide through Orders for the parties to engage with community-based services. A further Order will be made. I do not propose to make parenting Orders conditional upon compliance with that Order, but I do make clear that any failure to comply with it, both as to its terms and to its spirit may well, if Application is made to this Court, be found to be a contravention and with the penalties which flow from section 70NAE of the Act to the disadvantage of the non-compliant parent.
Orders for Family Counselling are made to assist parents to parent their children co-operatively, to assist parents to be the best parents they can be individually and in combination, to assist parents to deal with the very problems that cause them to be in conflict and which cause and generate disadvantage for their children. I would hope that both parents will engage with those services because they both desire what is best for their daughter.
Practical difficulty does not obviate against a substantial and significant time arrangement as both parents propose. The arrangement that each parent proposes falls somewhat short of an equal time arrangement but remains, in the terminology adopted by our American cousins, a shared care arrangement.
Capacity of each parent and others to meet the needs of the child, including emotional and intellectual needs
I have no concerns as to these parents and indeed X’s elder siblings being able to meet X’s intellectual needs. The emotional needs of X are perhaps ignored by all to some extent. However, both parents and X’s siblings are entirely capable of meeting her needs. They simply need to focus on X and before opening their mouth to criticise X’s mother, in the case of X’s elder siblings, to think to themselves “what good that will achieve for X”?
It may well be cathartic for them to criticise the mother. It may well, as they might perceive, serve some purpose of seeking to share with X their experience of X’s mother and perhaps to warn her of the things that they have experienced. However, these parents both agree they are not things X has ever experienced and thus it is unhelpful.
It is not about painting a false reality for X. It is about simply sharing with her what a 10 or 11 year old child needs to know which is not the ins and outs of events that occurred prior to her birth. Both parents, however, are entirely capable of meeting this little girl’s needs and the elder siblings clearly meet her needs on a practical level.
Maturity, sex, lifestyle and background of X
X is a young woman approaching adolescence. Her life is about to change substantially through Orders that will be made by this Court no matter which Orders are preferred. The Family Report Writer is clear in that regard, although expressing the view that perhaps a change as offered by the Independent Children’s Lawyer and Mr Ferry would be potentially less emotionally burdensome for the child, particularly as regards separation from her siblings. She will also have other changes soon as hormones begin to course through her system and she enters adolescence.
They are changes that will create further pressures, stresses and frustrations for both parents in parenting X. She will become her own individual, that which these parents have always intended consciously or otherwise as their duty to allow this child to differentiate herself, to form her own unique personality and to enter the world. That will make her more difficult to interact with, more difficult to parent.
One issue that is raised is a criticism of Ms Ferry’s accommodation as being inadequate, not affording sufficient privacy to the child, particularly, as I have already indicated, as she grows into adolescence, desires more independence, possibly privacy, and interaction with her peers at that abode. They are not matters that cause me great concern, although one issue that does arise is that if X begins to demonstrate behaviours, for example, as her elder siblings, particularly Ms R have demonstrated, there will be very little space for X and her mother to put between each other when those difficulties arise.
Beyond that, however, I am not concerned about Ms Ferry’s accommodation. Ms Ferry has the accommodation she can afford. She lives in a very expensive city, one of the more expensive cities in the world. She has very limited income; she does the best she can in those circumstances. I am not critical of her for the accommodation she has obtained. It is what she can afford. She does not live in the back of her car or a tent under the light rail arches in (omitted). She lives in accommodation with a toilet, running water and a shower and a small kitchen.
The mother has what is needed to meet her needs and that of this child. Even if she were to live in the less salubrious circumstances described above she would still love her daughter and be a very good parent to her.
Aboriginality
Aboriginality is not relevant as neither parent identifies as Aboriginal or Torres Strait Islander and thus X is not an Aboriginal child.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I am satisfied that is adequately addressed above.
Family violence involving the child or member of the child’s family
This is a relevant factor as raised on the evidence of both parents. It is perhaps more relevant as regards what could be appropriately described as family violence visited upon X’s elder siblings historically. That has impacted upon this family, its dynamics, its functioning and possibly also contributed to the termination of the relationship between Mr and Ms Ferry.
Those matters, however, linger in this family. Whilst they are historical events they are real, particularly for the three elder siblings, and they impact upon the interaction of all members of this family. Just because an event is historical does not make it unimportant. It is not adopting, as some describe, a black arm band view of history to acknowledge past wrongs.
Ms Ferry, to her credit, acknowledges that she can and should have behaved differently and the circumstances she describes – the stresses and pressures under which she operated within this family – make those actions entirely explicable. But there is a difference between explicable and appropriate and it is that difference which has led to the breakdown of the relationship between the three elder children and their mother. That now impacts upon X, not because she has been the victim of those behaviours, nor because it is apprehended that she will be, but purely because that dynamic now impacts upon her interactions with all. It provides some support to the position agitated by the Independent Children’s Lawyer and Mr Ferry.
There are no family violence Orders, nor have there ever been.
Whether it is preferable to make an order that will least likely lead to the institution of future proceedings
I am satisfied that the best that can be done in this regard is to make Orders that are clear and certain and whilst providing some scope for the parties to reach their own agreements, otherwise prescribe that which will occur so that there need be no dispute or dialogue.
I am also conscious that the avoidance of future proceedings is one of the very bases upon which Parliament has included section 65F of the Act. As I have indicated, I do not propose to disadvantage or prejudice X or this family through adjournment of the proceedings. However, further Orders for Family Counselling will be made and compliance is expected promptly and completely. It is to assist in the implementation of arrangements and to assist in developing functional co-parenting even if it operates, as the terminology often describes, as parallel rather than shared parenting.
For all of those reasons, I am satisfied that, on balance and particularly by reference to the additional considerations, that the proposals of the Independent Children’s Lawyer and Mr Ferry should largely be preferred. That is subject to a number of small amendments or additions.
I propose to include provision for X to keep with her the mobile phone that has been purchased for her by Mr Ferry and be able to use it to communicate when she wishes. I propose to also make an Order that enables each parent to contact X using that phone service between nominated times of 7:00pm and 7:30pm on any day that X is not in the care of and has not been in the care of that parent. It will provide some reassurance to X, perhaps all the more so the parents. I propose otherwise to add some definition to the provision for school holiday time so that there can be no dispute as to which portion of the holidays is the first and second and when those portions start and stop.
The Independent Children’s Lawyer has proposed, and Ms Ferry agrees with, an Order for changeovers to occur predominantly through X’s school but, when the school is not available, at a McDonald’s restaurant. There is no consent of the franchisee of that restaurant to their service being used for that purpose. I do not propose to make such an Order.
I accept that the intent is to ensure that there is some curtailing of unpleasantness as might arise at changeovers, although the evidence largely suggests that this has occurred when Ms Ferry has gone to the home of Mr Ferry and things have occurred between she and Y. I propose to avoid those situations by requiring that X be delivered to and collected from the mother’s home if school-to-school changeover cannot occur. That would appear to happen no more than half a dozen times per year, predominantly during school holidays.
Otherwise, I do not propose to send the parties to a public place in the vague hope and expectation that this will curtail any desire to engage in poor behaviour such as derogatory comments or abuse. All it will do is permit those disputes to be witnessed by others, innocently seeking to partake of enjoyment.
I also propose to expand the time period that is sought by each parent with respect to Mother’s Day and Father’s Day so that rather than it occurring purely for a period during the day that it occur for on an overnight basis. I see that as less disruptive for X and a more abundant period for each and, on the basis that it will be a mutual provision, each will obtain the benefit of it. Those Orders, however, will be made in due course and substantially in accordance with the Independent Children’s Lawyer’s Minute. That Minute largely replicates matters that are proposed by Mr Ferry but, perhaps in some important respects, with less prescription.
I propose also to make the additional Orders in relation to Christmas and Easter as are sought by Ms Ferry and are set out in her Application. One aspect in particular of the relief that is sought in the Minute tendered on behalf of Mr Ferry is a requirement that the mother provide details of any person who will share the mother’s accommodation whilst X is present.
On the basis that the parties agree that an Order for equal shared parental responsibility will be workable, I am satisfied and accept that the parties’ optimism in that regard, tempered with the requirement for them to attend Family Counselling services, permits and allows the Court to make such an Order and would render such restrictions upon the parents and each of them inappropriate.
As the Full Court of the Family Court of Australia discussed in VR & RR [2002] FamCA 320, it is not the role of the Court to do other than to allocate parental responsibility to the parents – not to then go about telling them how they will exercise it, to provide constraints and curtail the exercise of such parental authority. It is not inappropriate that the Order is sought, I simply see it as unnecessary. These parents, if they can be accepted as they must be on the basis of that proposed by each of them and the Independent Children’s Lawyer, are competent parents. They need not be told by the Court how to discharge their parenting duties.
Costs
At the end of the proceedings an Application is made by the Independent Children’s Lawyer for an Order that each of the parties pay one half of the costs that are incurred by the Legal Aid Commission in providing representation of X’s interests.
An Application for costs must be addressed by reference to section 117 of the Act.
Subsection (1) creates what is often referred to as the general rule that each party shall bear his or her own costs.
What is readily apparent is that the Independent Children’s Lawyer is not (see, for example, Bennett & Bennett (1991) FLC 92-191) a party to the proceedings. Thus, the general rule could not apply to them. The standing of the Independent Children’s Lawyer to seek costs is made clear by subsection (3).
Lest there is any doubt as to the capacity of the Independent Children’s Lawyer to seek an Order for costs, that is readily addressed in the legislation whereby subsection (4) specifically invests the Court with jurisdiction to entertain such an Application.
A discretion is reserved to make an Order for costs notwithstanding section 117(1) of the Act and the “general rule”. By reference to subsection (2), the Court must be satisfied of the dual test as discussed in Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812, that there is both a justifying circumstance for an Order for costs as well as it being just and equitable as between the parties (and presumably the Independent Children’s Lawyer) for such an Order to be made.
Subsection (2A) sets out a mandatory although non-exhaustive list of considerations. I propose to touch upon each of them briefly
Subsection (4) is also of importance to any Application by an Independent Children’s Lawyer for costs. The Court is, by that subsection, precluded from making an Order for costs in circumstances whereby a party has received Legal Aid in respect of the proceedings or the Court is satisfied that a party would suffer financial hardship if they were required to bear a proportion of costs.
Subsection (5) specifically precludes the Court having regard to funding arrangements for Legal Aid Commissions as a basis for an Order for costs – what might generally be referred to as a public policy consideration.
Financial circumstances of each of the parties
The specific details of the parties’ financial circumstances are not known. It is clear that Ms Ferry has very limited income. Ms Ferry has made an application to the Legal Aid Commission to be exempted from payment of costs. The Court is advised that the application has been successfully determined. Thus the Order, as it is sought, which would provide that any party who has not sought and obtained such a waiver is required to pay one half of the cost, is not resisted by Ms Ferry. She is fully aware that the Order would not require her to make payment. That is no criticism, purely a statement of her position.
The financial circumstances of Mr Ferry are not known either, specifically his income, assets or resources. What is known is that his household comprises himself and the four children of the relationship, albeit two have now reached their majority. It would not appear that the elder children make any substantial financial contribution to the household, thus Mr Ferry is left with the sole financial support of X and the costs of running the household. I will return to that issue shortly.
Whether any party has received a grant of legal aid
It would not appear that either has.
The conduct of the parties with respect to the proceedings
The parties have not dallied in compliance with any obligation, save, perhaps, Mr Ferry’s failure to comply fully with Orders for Family Counselling. That would not justify an Order for costs. It has not occasioned delay. It has been a missed opportunity and has possibly created disadvantage, in that matters which might have been addressed through those services have not been so addressed. They will be in the future.
The conduct of the parties could not represent a justifying circumstance. Their conduct has been appropriate. They have prepared their case expeditiously. They have conducted the hearing through their Counsel with expedition and erudition. The only delay with respect to the proceedings has been as a consequence of illness and, thus, these parties have been delayed for quite some months, awaiting a hearing beyond the many months that it took for the matter to reach a hearing in the first place.
Whether the proceedings were necessitated by failure of a party to comply with an order
This is not relevant.
Whether a party has been wholly unsuccessful
This is not relevant.
Whether offers have been made in writing
This is not relevant as regards any Application by the Independent Children’s Lawyer.
Other matters
I am satisfied that I can address the Application by reference to subsection (4). It is not strictly another matter but a mandatory consideration.
Having regard to Mr Ferry’s likely financial circumstances – the sole or predominant breadwinner in a household comprising himself and the four children – I am satisfied that there would be financial hardship imposed upon Mr Ferry by any Order for costs. On that basis, I am precluded from making an Order for costs.
I do not suggest that the Application made by the Independent Children’s Lawyer is trivial or inappropriate. Far from it. If the Court were able to consider the general funding arrangements for Legal Aid Commissions through whom such representation is provided, there would be a forceful case. However, with the little that is known of Mr Ferry’s financial circumstances, other than that he is a sole parent with the care of at least two dependent children, I am satisfied hardship would follow and, thus, no Order could be made.
Whilst Ms Ferry does not resist the Order that is sought it would appear, by the very terms of the Order sought, unnecessary to make an Order. Ms Ferry has already obtained a waiver and as a consequence, appropriately so, Ms Ferry would not be required to make any contribution. That is perhaps also an additional matter that the Court would have regard to. I am not satisfied that it would be just and equitable as between the parties to make an Order which would have the potential to see Mr Ferry required to pay one half of the cost and Ms Ferry none. He has not engaged in any egregious behaviour that would warrant such differentiation and prejudice.
For all those reasons, I make Orders as follows (see Orders).
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 16 March 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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