FLYNN & BRAY

[2015] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLYNN & BRAY [2015] FCCA 156

Catchwords:
FAMILY LAW – Children – parenting orders – variation of parenting orders – daughter aged 12 years – son aged 16 years – parental responsibility – sole parental responsibility – best interests of the child – where child expresses a wish to spend more time with father – whether child should live with father – where father seeks orders that both of the parties’ children should live with him – family violence – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA, 68L

Cases cited:
Peters & Bray [2010] FMCAfam 1154

Applicant: MS FLYNN

First Respondent: MR BRAY

File Number: SYC 4550 of 2010

Judgment of: Judge Scarlett

Hearing date: 31 July 2014

Date of Last Submission: 31 July 2014

Delivered at: Sydney

Delivered on: 28 January 2015

REPRESENTATION

Solicitor for the Applicant: Ms Savage

Solicitors for the Applicant: Fortis Law Group

The Respondent: In person

Independent Children's Lawyer: Mr Wilkins

Solicitors for the Independent Children's Lawyer: Phillip A. Wilkins & Associates

ORDERS

1. All earlier parenting Orders in respect of the children X born (omitted) 1998 and Y born (omitted) 2002 are discharged.

2. The Applicant Mother is to have sole parental responsibility for the care, welfare and development of the children X and Y in all matters except the children’s religion.

3. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for all matters concerning the religion of the children X and Y.

4. The Respondent Father is to have parental responsibility for all day-to-day matters involving the child Y at all times when she is in his care in accordance with these Orders.

5. The child Y is to live with the Mother.

6. The child Y is to spend time with the Father as follows:

   (a)Each alternate weekend during the school term, from immediately after school on Thursday until the start of school on Tuesday morning, commencing on Friday 6 February 2015 and fortnightly thereafter;

   (b)For one half of the school holidays at the conclusion of Terms 1, 2 and 3, being the first half in 2015 and all odd-numbered years thereafter and the second half in 2016 and all even-numbered years thereafter;

   (c)For the purposes of the above Order the first half of the school holidays is deemed to commence at 10:00am on the Saturday immediately after the end of the school term and is deemed to conclude at 5:00 pm on the following Saturday and the second half of the school holidays is deemed to commence at 10:00am on the second Saturday after the last day of the school term and to conclude at 5:00pm on the Saturday immediately before the start of the next school term;

   (d)During the Christmas/January school holidays as agreed between the parties or, in default of agreement, from 10:00am on 2 January until 5:00pm on 23 January in each year commencing on 2 January 2016;

   (e)From 6:00pm on Christmas Eve to 6:00pm on Christmas Day each odd-numbered year commencing in 2015 and from 6:00pm on Christmas Day to 6:00pm on Boxing Day each even-numbered year commencing in 2016;

   (f)In the event that the child Y is living with the Mother on the weekend that includes Father’s Day from 9:00am on Father’s Day to the commencement of school on the following Monday morning;

   (g)On the child’s birthday if that day should fall on a day when the child Y is not spending time with the Father in accordance with these Orders for a period of four (4) hours from 2:00pm until 6:00pm if the day falls on a weekend and from immediately after school until 6:00pm if the day falls on a school day; and

   (h)On the Father’s birthday if that day should fall on a day when the child Y is not spending time with the father from 9:00 am until 6:00 pm if the day falls on a weekend and from immediately after school until the commencement of school the following morning if the day falls on a school day.

7. In the event that the child Y is in the care of the Father on the weekend that includes Mother’s Day then the Father’s time with the child will be suspended from 9:00am on Mother’s Day until the commencement of school on the following morning.

8. To avoid confusion the Father’s time with the child on alternate weekends during the school term as prescribed by Order (6)(a) above will recommence immediately after school on the second Friday after the commencement of the school term.

9. For the purposes of changeover during the school holidays in accordance with Orders (6)(c), (d) and (e) above the Father will collect the child from the Mother’s residence at the commencement of the time and the Mother will collect the child from the Father’s residence at the conclusion of the time.

10. The child Y is to communicate with the Father by telephone every Wednesday between the hours of 4:30pm and 5:30pm and for the purposes of this Order the child will be permitted to call the Father from a mobile telephone for which the Father will pay and the Mother is to ensure is kept charged.

11. The parties must advise each other as soon as is reasonably practicable of any matters affecting the state of health of either of the children or any medical issues which may arise with either of the children whilst in their care, and for any medical appointments arranged for the children’s attendance in the event of any serious illness or injury suffered by either of the children.

12. The Mother must authorise all medical and health care providers to provide to the Father any information that he may request in respect of any treatment or care provided to either of the children.

13. The Mother must authorise the schools which the children are attending to provide to the Father copies of all school reports, newsletters, invitations that are normally provided to a parent and the Father shall be permitted to attend any event or function which a parent may be invited or permitted to attend PROVIDED THAT the Father is restrained from attending at the school in the event that the school in its discretion declines to permit the Father to attend.

14. The parties are restrained from criticising or denigrating the other party in the presence or hearing of either of the children or permitting any third person to do so.

15. The parties are restrained by injunction from using any form of physical chastisement on either of the children.

IT IS NOTED that publication of this judgment under the pseudonym Flynn & Bray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4550 of 2010

MS FLYNN

Applicant

And

MR BRAY

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of the parties’ daughter, Y, aged 12 years and 9 months, for parenting Orders providing that the child should live with her and spend time with the Father.

2. The Father, by his Amended Response filed as long as 17^th December 2012, seeks orders that both of the parties’ children, Y and X, aged 16 years and 9 months, should live with him and spend time with their mother.

3. There has been a Family Report prepared. The Family Consultant who prepared the Report does not support the Father’s proposal to change the residence of both children.  

Background

1. There has been a troubled history of litigation between the parties. The Mother originally commenced parenting proceedings against the Father in respect of both children as long ago as 20^th July 2010, when she filed an Initiating Application seeking parenting orders in her favour, including a location order and a recovery order.

2. Those proceedings were resolved on 8^th October 2010 by final orders made after an undefended hearing where the Father did not attend Court (Peters[1] & Bray[2]). The orders made provided that:

   a)the two children would live with the Mother;

   b)the Mother would have sole parental responsibility for the children;

   c)the Father would spend time with the children on alternate weekends, special days such as Father’s Day, and for half of the school holidays; and

   d)other ancillary orders.

   [1] The mother has since remarried

   [2] [2010] FMCAfam 1154

3. However, on 1^st August 2012 the mother filed an Application for a recovery order in respect of the child Y and sought the following final orders:

   1. That the child Y born (omitted) 2002 live with the Mother – Ms Flynn born (omitted) 1974.

   2. That Mr Bray born (omitted) 1971 be restrained from removing the Child from the Mother’s care, including but not limited to removing the Child from: the Mother’s residence, the Child’s School, the Maternal Grandparents residence.

   3. That the child spend time with the Father in accordance with Orders of this Honourable Court.

4. It would appear that the Mother’s proposed Order 1, that the child should live with her, was redundant in the circumstances as there was already an order to that effect in place.

5. The Application was supported by an affidavit of the Mother in which she deposed that the Father had removed the child Y from the home of her mother, the child’s maternal grandmother, on 21^st December 2011 without the maternal grandmother’s knowledge. The Father returned the child to the Mother’s home on 30^th January 2012, however he removed the child from her school on the afternoon of 31^st January and kept her in his care.

6. Although the Mother swore her affidavit on 4^th May 2012, the Application and affidavit were not filed until 1^st August 2012, nearly three months later.

7. Despite the somewhat leisurely pace of the Mother’s Application[3], the Court Registry granted leave to serve short notice and the Application was made returnable on 6^th August 2012.

   [3] The Mother explained at paragraphs [30]-[32] of her affidavit of 17 July 2014 that she had had difficulty in obtaining legal aid and was obliged to appeal against an initial refusal of a grant of aid.

8. The Mother’s solicitor attended Court on the return date but the Mother did not, as she was apparently ill. The documents had not been served on the Father. The Application was re-listed to 24^th August.

9. The Father attended Court on 24^th August and was ordered to return the child to the Mother’s care forthwith and was restrained from removing the child from her care in the future. The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they eventually did on 24^th September 2012. The Family Consultant recommended that an Independent Children’s Lawyer should be appointed.

10. On 23^rd November 2012 an order was made under s.68L of the Family Law Act 1975 (Cth) that the child’s interests should be independently represented by a lawyer.

11. On 17^th December 2012, with the assistance of the newly-appointed Independent children’s Lawyer, Mr Wilkins, the parties entered into interim Consent Orders providing that:

    a)The Father would spend time with the child on various occasions;

    b)The child would communicate with the Father by telephone every Wednesday;

    c)The parties were restrained from discussing the proceedings with the child;

    d)The Father was restrained from discussing matters of religion with the child;

    e)The Father was restrained from attending the child’s school; and

    f)If the Father failed to return the child after spending time with her, the NSW Police would be empowered to remove the child form the father’s care and return her to the mother.

12. A Family Report was ordered under the provisions of s.62G of the Family Law Act 1975.

13. The Father filed a Response on 12^th October 2012 and an Amended Response on 17^th December 2012. In the Amended Response, the Father sought orders that:

    a)Both children should live with him;

    b)The children should spend time with the Mother;

    c)The parents should be permitted to take their children to their respective churches when the children are in their care;

    d)The parties’ daughter should be allowed to express her religious freedom unfettered by any parent; and

    e)Other ancillary orders.

14. The Father filed a supporting affidavit and a Notice of Child Abuse, Family Violence or Risk of Family Violence. In the Notice of Child Abuse, the Father made the following allegations about the mother:

    1. Physical assault – repeated striking on arms, legs and back including physical restraint.

    2.  Repeated derogatory taunts

    3.  Intentionally damaging or destroying property

    4. Preventing the daughter from making or keeping connections with her father, friends, relatives and church group.

    5. Exposing the child to family violence where police have been involved

Evidence

1. The Mother relied on her trial affidavit of 17^th July 2014. The Father, who was not represented, had not prepared a trial affidavit as such. He sought to rely on his affidavits of:

   a)6^th October 2012;

   b)11^th December 2012;

   c)16^th December 2012; and

   d)seven affidavits all sworn on 17^th July 2014.

2. It was the Mother’s evidence that both children lived with her, along with an adult son from a previous relationship. She has remarried.

3. The Mother deposed that the parties’ daughter Y “is very proud of her Koori heritage”[4] . Her relationship with her daughter has improved since she and the Father agreed at Court that changeovers should take place at school. Their son X is old enough at 16 to express his own wishes about where he wants to live.

   [4] Affidavit of Ms Flynn 17/7.2014 at paragraph [12]

4. The Mother detailed the Father’s history of failing to comply with Court Orders relating to parenting, including removing Y from school without her knowledge or consent. She also complained about family violence inflicted on the child by the Father, including punching the child on the cheek on 29^th June 2010.[5] She also complained about the Father’s history of attending her home unexpectedly and without her consent, and threatening her or yelling abuse at her.[6]

   [5] Ibid at [16]

   [6] Ibid at [35]-[36]

5. The Mother deposed that she has been flexible in allowing the Father to spend additional time with Y although she claims that he is not amenable to changing arrangements when she wishes to do so. She states that she would like to share special days with the Father on an alternating basis, saying at [100]:

   Most of my problems with the Father stem from sharing of holidays. Sharing Christmas Day with the Father does not work for us.

6. The Mother expressed concern about the Father’s attitude to the child’s religions, stating:

   I am still worried that the Father is exposing the Child to fanatical religious beliefs. Since the Child has been going to Church with the Father she has refused to come to my Church – (religion omitted) Church. I still am confused as to why the Father chose to enrol the Child in a (religion omitted) School when he has been so against the Church.[7]

   [7] Affidavit of Ms Flynn 17.7.2014 at [115]

7. The Mother believes that the Father has “little regard” for Court orders. She gave oral evidence and was cross-examined by Mr Wilkins, the Independent Children’s Lawyer (ICL). She was also cross-examined briefly by the father. The Mother stated that she had always accepted that Y should “see her Dad”.

8. The Father’s plethora of affidavits sworn on 17^th July 2014 consisted of accounts of various incidents where he claimed that the child Y had contacted him and asked if she spend time with him.

9. His affidavit of 16^th December 2012, prepared by his former solicitors, Benchmark Conveyancing Lawyers, contains a more comprehensive account of the Father’s position. He expressed some frustration about the child’s involvement with the juvenile justice system, including the fact that the child had been refused bail and was being held at the (omitted) Detention Centre. He claims that the Mother has not been keeping him informed about X’s situation, including the child’s hospitalisation.

10. The Father denies many of the Mother’s allegations in her earlier affidavits and accuses her of failing to be concerned with the responsibility of bringing up either Y or X.[8] He claims that the Mother consented to many of the occasions when Y spent time with him outside the Court orders. He claims that the Mother has not allowed X to spend time with him.[9]

    [8] Affidavit of Mr Bray 16.12.2012 at [107]

    [9] Ibid at [111]

11. The Father was cross-examined by the Mother’s solicitor, Ms Savage, and by Mr Wilkins. He told Mr Wilkins that he would “live Y to build a closer relationship with her mother”. He said that Y had told him that she wanted to live with him. He said “I’m a great parent.”

The Family Report

1. The Family Report in this matter was prepared by Ms S, a Family Consultant at the Sydney Registry of the Court.

2. For the purpose of the Report, Ms S interviewed both parents and the child Y. She observed the child in the presence of each parent. She also spoke to the child’s school principal on the telephone.

3. Ms S commented:

   Neither X nor Ms Flynn’s husband attended the Family Report interviews. Ms Flynn said that X, who she described as being “uncontrollable”, is in Year 10 and, having recently returned to school, did not have the time to attend the interviews. She also said that she had not wanted to argue with X and risk escalating his level of aggression prior to his going to school. It is not clear why Ms Flynn’s husband did not attend, except that Ms Flynn stated that he does not get involved with the children when it comes to discipline and that this is for cultural reasons as well as because of Mr Bray’s likely reaction.[10]

   [10] Family Report page 12 at [2]

4. It is regrettable that neither X nor the Mother’s husband attended the interviews.

5. The Family Consultant noted that the mother described the Father as:

   a)having no social skills;

   b)being a compulsive liar; and

   c)having always been paranoid.[11]

   [11] Family Report page 11 at [17]

6. On the more positive side, the Family Consultant observed:

   With regard to Y’s relationship with Mr Bray. Ms Flynn remarked that Y “loves her Dad” and that she is “lucky” to have such a bond with him, a bond that Ms Flynn believes Mr Bray does not have with X.[12]

   [12] Ibid at [19]

7. The Family Consultant described the Father as “personable, forthcoming and resolute”.[13] The Father considered that he had been the one active parent for Y and expressed the belief that, whatever decision the Court made, the child would return to him. He said that he had been raised as a (religion omitted) and that the child had been involved in the (religion omitted) Church with him for the past five years.

   [13] Ibid at [20]

8. The Father told the Family Consultant that he did not see X, despite the Court orders providing for time with him, because the Mother would say that X did not want to go with him. She reported that:

   Mr Bray described X as having become involved with drugs, glue (sniffing) and criminal activities, which he attributes to X having had no rules in his mother’s household. He views X as having ‘lived [a] life of no discipline or boundaries’. Mr Bray stated that he loves X and does not blame him.[14]

   [14] Ibid at [24]

9. The Father stated that it was the Mother who had perpetrated family violence on him, rather than the other way round, although he conceded that he had “backhanded” the Mother on one occasion and kicked a door in on another.

10. The Family Consultant referred to X by reference to the reports of the Mother, stating that he lived with the Mother and was still involved with the Juvenile Justice system. The Mother said that he had been diagnosed as having ADHD as well as Obsessive Compulsive Disorder and Oppositional Defiant Disorder. The Mother said that the Father had been very violent towards X.

11. The Family Consultant interviewed Y, whom she described as “an intelligent, articulate and engaging child”.[15] The child spoke in positive terms of the (religion omitted) church which she and her Father attend, saying that she felt really loved and viewed the church as one of her main homes.

    [15] Family Report page 18 at [29]

1. Y told the Family Consultant that she wanted to live with her father “whom she views as having mostly taken care of her and identifies as the person she feels closest to. She said that she loves cuddling her father and that she knows he loves her”…[16]

   [16] Ibid page 19 at [30]

2. Y also spoke about her mother “with affection and warmth”.[17]

   [17] Ibid at [31]

3. The Family Consultant reported on her conversation with Y’s school principal, who described the child in very positive terms. The principal said that:

   …what works best for the school is for there to be very clear rules and routine regarding Y’s parenting arrangements and for any attempt at flexibility to be avoided (as this has in the past led to confusion for the school).[18]

   [18] Ibid at [38]

4. The Family Consultant described Y as:

   …a child who, since around 2008, has been the focus of her parents’ battle with one another, the result of which has been, for one, a significant level of instability and unpredictability in her living arrangements.

   Y needs a stable, structured and predictable routine and to have her relationships with each of her parents supported, rather than undermined, by the other parent.[19]

   [19] Ibid at [40]

5. The Family Consultant noted the child’s expressed wish to live with her father but noted that there was a question whether the Father would support the child’s relationship if she were living with him. She also warned of the risk of the child’s alignment with the Father becoming further entrenched or, if the Father displeased her in some way, that she might switch her allegiance to her mother and want to go back to her. She added:

   Either way is not a good outcome for Y. In short, a change to who Y lives with will not solve the problem of the parental relationship or Y’s involvement in it.[20]

   [20] Family Report pages 26-27 at [45]

6. The Family Consultant recommended that:

   a)Y should continue to live primarily with her mother;

   b)The Mother should have sole parental responsibility for the child except in the area of religion;

   c)Y should spend time with her father each alternate weekend from Thursday to Tuesday, with the father to collect her from school on Thursday and return her to school on Tuesday morning;

   d)The child should spend half the school holidays with each parent;

   e)Special occasions should be alternated; and

   f)The Father should be restrained from attending at the child’s school except when exercising his time with the child.

7. The Family Consultant gave oral evidence by telephone and was cross-examined by Mr Wilkins, Ms Savage and the Father. She was not shaken in her evidence.

Applications for parenting orders

1. When the Court is considering making parenting orders, it must have regard to the matters contained in Part VII of the Family Law Act. In particular, the Court should consider the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or, failing that, substantial and significant time, with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant.

Parental responsibility and section 61DA of the Family Law Act

1. Section 61DA of the Family Law Act 1975 provides at subsection (1) that when making a parenting order the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child.

2. However, subsection 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

3. The ICL has submitted, correctly, in my view, that there is evidence before the Court to believe that a parent has engaged in family violence. In fact, each parent has made that allegation about the other.

4. It also appears that it would not be in Y’s best interests (s.61DA(4)) for her parents to have equal shared parental responsibility because of their longstanding inability to communicate. The Family Consultant does not recommend equal shared parental responsibility, except in matters of religion.

Section 65DAA of the Family Law Act

1. As I do not intend to make an order that the parties should have equal shared parental responsibility (except in the area of religion) the provisions of s.65DAA in respect of equal time between parents or substantial and significant time do not apply.

Relevant matters in section 60CC of the Family Law Act

1. The primary considerations are to be found in subsection 60CC(2). They involve a balance between the benefit to the child of having a meaningful relationship with both of the child’s parents on the one hand and the need to protect the child from physical or psychological harm  on the other.

2. The evidence is clear that the child Y will benefit from having a meaningful relationship with each parent. However, family violence has been an issue on the parents’ relationship in the past, and there are allegations of violence towards both Y and X. There is no current family violence order in force. I propose to make an order restraining the parties from using any form of physical chastisement on either of the children.

3. The first of the additional considerations in paragraph (a) of s.60CC(3) is a considerations of any views expressed by the child and any factors, such as the child’s maturity and level of understanding, that the Court thinks relevant to the weight it should give to the child’s views.

4. The child Y told the Family Consultant she wanted to live with her father, as she felt closer to him. This child is only 12 years old, and some caution should be exercised in giving much weight to this view. It is certainly clear that this girl would like to spend more time with her father on a regular basis, and this would appear to be beneficial to her.

5. Y has a warm relationship with each parent. X, from what little information there is before the Court, appears to be estranged from his father.

6. The Family Consultant does not support a change in the child’s circumstances by way of her going to live with her father on a full time basis. Whilst this might be in line with the child’s expressed wishes, there is a concern that the father would do little to support the child’s relationship with her mother, even though he has said that he will. The Father has said in his submission:

   I would encourage Y to spend time with her mother and her mother’s Family on a regular basis and embrace her indigenous culture. I think it’s important for Y and her mother.\

7. It does appear that an increase in the amount of time that this child spends with her father during the school term, being a block of five nights per fortnight, would have a beneficial effect on her.

8. The practical difficulty and expense of the child spending time with and communicating with her father arises from the lack of communication between the parents, rather than the physical distances between their respective houses. A changeover at the child’s school at the beginning and end of the Father’s time would help to resolve that difficulty.

9. Each parent is critical of the capacity of the other to provide for the needs of the child Y. The Mother has expressed concern about the capacity of the Father to deal with the onset of puberty in the child and the commencement of menstruation.

10. The child Y is Aboriginal on her Mother’s side and her mother is supportive of her right to enjoy that culture. The Father says that he would encourage the child to enjoy that culture.

Orders that are in the children’s best interests

1. It appears that the older child, X, who lives with the Mother, is estranged from his father. In the circumstances, the Father’s proposal that both children should live with him appears to be unrealistic.

2. As suggested by the Independent Children’s Lawyer, I propose only to order that the Mother should have sole parental responsibility for X, except in the area of religion. I will order that both parents will have equal shared parental responsibility in regard to the children’s religion, although it is doubtful whether this will have any appreciable effect on X at all.

3. X was born on (omitted) 1998. He will attain the age of 17 years in three months’ time. He also appears to have some involvement with the Juvenile Justice system, but it is unclear whether he is currently the subject of supervision under any community based order from the Children’s Court or any other Court.

4. In my view, the only order to be made about X is an order for parental responsibility.

5. I am not persuaded that it is in Y’s best interests to change her residence from the home of her mother to the home of her father, and I note the recommendations in the Family Report. It will assist this child for her to spend more time with her father on a regular basis during the school term, and I propose to order accordingly.

6. I propose to accede to the submission that the mother should have sole parental responsibility for Y except in regard to matters of religion, where the parents should have equal shared parental responsibility. The Family Report makes it clear that the child gains benefit from being involved in the Father’s church, which appears to be a part of the (religion omitted) Church. As the Father stated to the Family Consultant, the (religion omitted) Church is a mainstream church and not a cult.  

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  28 January 2015