FULLER & FULLER
[2011] FMCAfam 848
•18 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FULLER & FULLER | [2011] FMCAfam 848 |
| FAMILY LAW – Whether order for equal shared parental responsibility should be made when parents lack ability to communicate – whether increasing time with father might affect his relationship with child. |
| Family Law Act 1975 (Cth), ss.4, 11F, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC |
| Marvel & Marvel (No.2) [2010] FamCAFC 101 Chappell & Chappell (2009) 39 Fam LR 627 |
| Applicant: | MR FULLER |
| Respondent: | MS FULLER |
| File Number: | DGC 1365 of 2010 |
| Judgment of: | Phipps FM |
| Hearing dates: | 18 February & 4 & 11 March 2011 |
| Date of Last Submission: | 11 March 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Barbayannis Lawyers |
| Counsel for the Respondent: | Mr Hall |
| Solicitors for the Respondent: | Robert Halliday & Associates |
ORDERS
All previous orders are discharged.
The mother have sole parental responsibility for decisions about the education and health of [X] born [in] 1999 (the Child).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)From the conclusion of school or tennis on Friday (or 4.00pm if Friday is not a school day) until 5.00pm Sunday each alternate weekend;
(b)From the conclusion of school on Tuesday (or 4.00pm if not a school day) until 8.00pm each alternate Tuesday;
(c)For half of each school term holidays as agreed and if not agreed the first half provided the father is able to be in substantial attendance;
(d)For two weeks during the summer holidays as agreed and if not agreed commencing 2 January in each year provided the father is able to be in substantial attendance;
(e)Unless otherwise agreed from 4.00pm Christmas Day until 4.00pm Boxing Day each year;
(f)On the child’s birthday and the father’s birthday, on a school day from after school until 7.00pm and on a non school day from 2.00pm until 5.00pm;
(g)On Father’s Day from 10.00am until 5.00pm;
(h)If the child’s birthday or the mother’s birthday occurs on a day the child is spending time with the father, time is suspended from 3.00pm until 6.00pm;
(i)If Mother’s Day occurs on a weekend the child is spending time with the father, the father’s time with the child for that weekend concludes at 10.00am on Sunday;
(j)By telephone at all reasonable times;
(k)Time under paragraphs 3(a) and (b) are suspended during any school or summer holiday the child is spending time with the father pursuant to paragraphs 3(c) or (d).
When not taking place at school or [sport omitted] changeovers are to take place at McDonalds Restaurant [address omitted].
Without admitting the necessity each of the parties be and are hereby restrained by injunction from:
(a)Consuming or being affected by alcohol to excess (meaning in excess of 0.05 blood alcohol content) when the child is in the care of that party;
(b)Denigrating, abusing or belittling the other party or members of that party’s family or household or discussing these proceedings in the presence or hearing of the child or allowing any other person to do so;
(c)Physically chastising the child or allowing any other person to do so.
Each party hereby authorise and directs any school in which the child is enrolled, and any medical or other health practitioner whom the child consults from time to time, to release and provide to both parties:
(a)Copies of school reports, newsletters, school event invitations, photograph opportunities and like correspondence; and
(b)Copies of medical reports and access to medical records, notes and memoranda in relation to the child.
For the avoidance of doubt each party is at liberty to attend any school or sports activity in which the child is engaged and to which parents are normally invited, (provided however that the parties shall abide by the terms of any operative intervention order).
IT IS NOTED that publication of this judgment under the pseudonym Fuller & Fuller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1365 of 2010
| MR FULLER |
Applicant
And
| MS FULLER |
Respondent
REASONS FOR JUDGMENT
Introduction
The father Mr Fuller and the mother Ms Fuller have one child [X] born [in] 1999 aged 12. Presently he lives with the mother and spends alternate weekends from Friday afternoon until Sunday afternoon and some time on alternate Tuesday evenings with the father. The father wishes to increase the alternate weekend time to from Wednesday afternoon to Monday morning and add half school holidays and make provision for special occasions. The mother wishes to maintain the alternate weekend times.
Significant issues are the views of [X], his relationship with each parent, the effect on [X] of any change and the ability of each parent to provide for [X]’s needs.
Background
Both parties were born in New Zealand, the father [in] 1966 and the mother [in] 1972. They commenced cohabitation in New Zealand in 1996 or 1997. [X] was born in Auckland New Zealand [in] 1999. The parties migrated to Australia with [X] in 2004 and lived in Melbourne. They separated in February 2007 according to the mother and March 2007 according to the father. The mother has a child from a previous marriage, [Y] born [in] 1992. He lived with the parties during their cohabitation and with the mother after separation.
The parties disagree about many things. Each alleges it was the other’s wish to move from New Zealand to Australia. The mother alleges that during the relationship the husband would consume alcohol to excess, was physically abusive, controlled finances and was emotionally and psychologically abusive. The husband denies these allegations. For instance, he says that at one point he would drink socially but he stopped drinking when [X] was three years old. He says he was completely sober from then until separation.
The wife alleges that the husband's intimidation and abuse has continued following separation. Again, the husband denies the allegations and criticises the wife's behaviour. [Y] gave evidence. He says in his affidavit that he witnessed violence and abuse and the father hit him and was abusive. The father denies these allegations. [Y] was cross-examined fairly briefly and maintained his position.
Sensibly, events which occurred prior to separation were not pursued to any extant during the trial. The one significant matter is the current relationship between the parties. The father, when asked to describe his relationship with the mother said “We’re at the bottom end of the communication scale”.
After separation [X] lived with his mother and spent every weekend from Friday evening until Sunday evening with the father, although the mother alleges that the father was sometimes late and sometimes cancelled weekends at short notice. This arrangement continued until July or August 2008 according to the mother and March or April 2008 according to the father. [X]’s time with his father then changed to alternate weekends, by agreement according to the mother, and by unilateral decision of the mother according to the father.
The father met his current partner Ms D in 2009 and started dating and spending time at her house. Subsequently they started living together. Ms D has three children aged 16, 14 and 9.
[X] spent some time with his father on Father’s Day 2009 and then only twice in the period September to December 2009.
On Christmas Eve 2010 [X] ran away while spending time with his father. He went to a stranger’s house and the lady there rang his mother. She rang the police and went to the house. [X] went home with her.
After that the mother says [X] made statements which suggested that he was contemplating suicide and did not want to see his father. [X] then did not see his father from February 2010 until June 2010.
The father commenced the proceedings on 27 April 2010. Following a meeting with a family consultant pursuant to an order made under s.11F of the Family Law Act 1975 (Cth). An order on 9 June 2010 provided for [X] to live with the mother and spend time with the father from 10.00am to 6.00pm on three occasions and then on alternate weekends from 5.00pm on Friday to 5.00pm on Sunday commencing on 23 July 2010. An order of 3 August 2010 extended the weekend time to after school or [sport omitted] on Friday and added time on each Tuesday from after school or 4.00pm until 8.00pm The order provides for telephone communication on Monday, Wednesday and Friday.
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that a child’s best interest is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
Section 61DA requires the court to apply a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe there has been abuse of the child or another child, a member of the family, family violence, or if it is not in the best interests of the child.
If the presumption is not rebutted s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are in s.65DAA(5).
Section 65D provides that a court may make such parenting orders as it thinks fit, subject to certain following sections of the Act. Section 60B (2) describes the type of parenting orders a court may make which includes the allocation of parental responsibility for a child.
Parental responsibility
The mother submits that the presumption that it is in the best interests of [X] for his parents to have equal shared parental responsibility for him is rebutted because there are reasonable grounds to believe that the father has engaged in family violence and because it is not in his best interests.
In any case the presumption might be rebutted on family violence grounds but it still might be appropriate to make an order for equal shared parental responsibility, if it might be in the best interests of the child to do so. I have concluded that an order for equal shared parental responsibility is not in [X]’s best interests so I will deal with best interests considerations first.
Section 65DAC provides:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Major long term issues is defined in s.4:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The father, when asked to describe his relationship with the mother said “We’re at the bottom end of the communication scale”. In the father’s trial affidavit he described the relationship between the mother and him as rife with tension. He said they seldom agreed on anything. He said he sought to minimize any contact between the mother and him and that he sought orders so that there be no direct contact between the mother and him.
During cross-examination the father agreed with the following propositions from the family report:
The parental relationship appears to be highly conflicted at present
The lack of communication between the parties is a major concern and impacts on the capacity of the parties to make cooperative and informed parenting decisions for [X]
The family report recommended counselling but the father said he saw no point in it and the mother has a similar attitude.
The mother claims that the father was aggressive during the relationship and that behaviour has continued after the separation. She does not believe that the parties can reach agreement and has demonstrated that by enrolling [X] in a secondary school without consulting the father.
[X] suffers from allergies, a major point of contention between the parties. The mother alleges that the father gives [X] unsuitable food and that he returns from time with his father unwell. The father denies that this happens. The mother relies on a “P.R.T. Analysis” done by [P] Natural Health Clinic as the guide for [X]’s diet. The father acknowledges allergies, but was dismissive of the natural health tests. Should a major issue arise about [X]’s allergies and his health, not only might the parties not be able to communicate, the possibility of a major dispute between them involving litigation is a real one.
In Marvel & Marvel (No.2) [2010] FamCAFC 101 the Full Court of the Family Court said at [103]
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s.65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
The Full Court made a similar statement in Chappell & Chappell (2009) 39 Fam LR 627.
The circumstances I have described make this a case of the sort the Full Court is referring to. The conflict between the parties is affecting [X]’s relationship with each of them, as the family report demonstrates. The Full Court referred to as relevant the best interests consideration in s.60CC (3)(l), whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. Since the conflict between the parties is affecting [X]’s relationship with each parent, relevant is the consideration in s.60CC(3)(b), the nature of the relationship of the child with each of the child's parents. An order for equal shared parental responsibility might escalate the conflict and heighten [X]’s anxiety about his parent’s relationship.
These considerations show that an order for equal shared parental responsibility is not in [X]'s best interests. The presumption in s.65DAC is rebutted and independently of the rebuttal I am satisfied that it is not in [X]'s best interests to make such an order, but to make an order that the mother have sole parental responsibility.
In Chappell & Chappell (2009) 39 Fam LR 627 the Full Court said that an order for parental responsibility needed to be clear to enable people such as schools and medical practitioners to know who has responsibility for decision making. The relevant matters in this case are education and health. Religion and the child’s name are not an issue. The mother should not have the sole responsibility for changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent. If she does propose such a change, if not agreed, it should be decided by proceedings under the Family Law Act. Otherwise each parent retains parental responsibility pursuant to s.61C of the Family Law Act 1975 (Cth).
The mother alleges that the father was violent, particularly after drinking. The father denies the allegations. The mother’s allegations in her affidavit are general rather than detailed. However, [Y] in his affidavit describes seeing the father holding the mother up against the wall. He said he could remember other times when the father was physically violent to the mother especially when drinking. He remembered seeing bruises on his mother’s upper arms and lower neck. [Y] said that the father lifted him up and broke wooden spoons across his legs and he could remember the father smacking [X] across the back of his legs when he was pretty young before primary school.
The father says that he did physically discipline [X], but denies that there was any excessive force.
[X] told Ms D that his father had lifted him up and hit him with a wooden spoon. [X] said it was difficult to have a conversation at the dinner table because his father was mean. Ms D says that [X]'s comments appear to mirror his mother's information.
The father's partner gave evidence. She said she had not seen the father mistreat [X].
The mother obtained an intervention order after separation. The basis for this was alleged aggressive behaviour by the father. The behaviour described by the mother might meet the definition of family violence contained in s.4 of the Family Law Act 1975 (Cth) in that it caused the mother to have a reasonable apprehension for her safety or personal wellbeing. The behaviour was alleged to have occurred at changeovers. [X] told Ms D that he did not see the father yelling at changeovers.
The mother's allegations are not specific. The issue of family violence received little attention during cross examination, which is understandable because if there was family violence it is one of the things which has lead to the poor relationship that now exists between the parties. The poor relationship is a matter which is now relevant but not so much how it has come about. Family violence is relevant to the presumption that it is in the best interests of a child that parents have equal shared responsibility. The focus of the hearing was how much time [X] should spend with his father. Co-operative decision making received little attention because it was common ground that the parties had almost no ability to communicate.
The state of the evidence does not permit a finding one way or the other that there was family violence, or that there are reasonable grounds to believe there was family violence.
Best Interests
There will be no order for shared parental responsibility and so the provisions of s.65DAA do not apply. I must consider what is in [X]'s best interests taking into account the relevant best interest considerations contained in s.60CC.
The first of the primary considerations is the benefit to [X] of having a meaningful relationship with each of his parents. Until the commencement of the hearing the mother's position was that [X] should have time during the day only with his father. While the proposal put through her Counsel at the commencement of the hearing is for overnight time the mother continued to maintain in her evidence that [X] wants only to spend daytime time with his father. She claims that [X] is verbally abused by his father and cries himself to sleep. She claims that [X] is fed the wrong food at his father's home and comes back to her sick, sometimes so that he cannot go to school on the Monday. She says [X] does not get attention when spending time in his father’s home because of the presence of the father’s partner’s three children.
The father disputes all of the mother's claims. He says that [X] enjoys his time with him. He says [X] is given the right food, something repeated by the father’s partner.
The father proposes five nights each fortnight, Wednesday night to Monday morning in alternate weeks for several reasons. He says he believes that the additional time will enable him to help [X], for instance with his home work. It means he will have time with [X] when his partner’s children are not in the home. It means he can collect [X] from school and deliver him to school and so avoid changeovers and so occasions of conflict with the mother.
Each party has an extremely negative perception of the other, as already explained. Clearly this has affected [X]. Both parties have little insight into [X]’s needs in his relationship with each of his parents.
One thing not in dispute is [X]’s need to have overnight time with his father. Yet the mother, while formally acknowledging this by the proposal put through her Counsel, gave evidence to the contrary. The father, on the other hand does not appear to understand that the change to five nights in succession may have an adverse effect on [X] and that this is something which has to be considered.
[X] ran away from his father’s home on Christmas Eve. His explanation was that he was worried about his mother being alone at Christmas. Subsequently, his anxiety was such that he expressed suicidal thoughts. The father was cross-examined about how he thought [X] might react to his proposal for five nights a fortnight. It was put to the father that [X] might find the five nights at a time stressful in the same way that he was stressed at Christmas. The father's response was to refer to his own position as a father having his son spend time with him.
[X] spent regular time with his father, at first weekly then changed to fortnightly in 2008. The times became irregular in late 2009 and stopped completely in February 2010. Each parent blames the other for this happening. The mother says that it was caused by the father’s intimidation at changeovers, his unreliability in exercising time with [X] because he preferred to spend time with girlfriends and by [X]’s unhappiness at spending time with him. The father says it is because the mother affected [X] with her negative attitude towards the father.
The attitudes illustrate the one common ground between the parties, that is, that their ability to communicate is virtually nonexistent. Relevantly for the determination of the issues in this case they illustrate that neither party can separate their negative view of the other party from their views about what is best for [X]. Fortunately there is very good expert evidence about how [X]’s relationship with each parent can best be promoted.
Ms C is a psychologist who saw [X] for the purpose of counselling. [X] was referred from his General Practitioner under a mental health plan. Ms C has been a registered psychologist since 2001 and has had extensive experience in working with children, including work in the Children's Court of Victoria.
In a written report she said that at that stage she had seen [X] seven times. At the time of the hearing, where she gave evidence, she had sent him on several more occasions.
The family report writer, Ms D, described [X] as emotionally fragile. Ms D saw the parties and [X] in November 2010. Ms C first saw [X] in October. She said he was emotionally fragile at that time but since was much improved.
In the report Ms C said [X] discussed his feelings in relation to the acrimonious situation between his parents. She said that according to [X] he was placed in a position where he was questioned or required to take sides. She said he was working on asserting himself to enable him to respond appropriately. Ms C describes [X] as having a very strong loyalty to his mother. He does miss her and told Ms C that he sometimes cries at bedtime as he misses his mother. [X] said his father handles this very well giving him the option of calling his mother.
Ms C says that [X] enjoys time with both his parents and wishes that they would get on. He feels safe at his father’s home.
Ms C prepared the report at the request of the father’s solicitors. The latter requesting the report asked her to comment on the father's proposal of five nights a fortnight. In the report Ms C said that in her view the proposal is a workable solution. She said that [X] might need some time to adjust to this and should be told by both parents that the arrangement is to take place in the presence of a third party. In her oral evidence Ms C said that that it may have been better if she had not put this in the report. In this context she said [X] was having difficulty with overnight time.
By the conclusion of Ms C’s evidence it was clear that she had a very good understanding of [X]’s relationship with his parents, his emotional state and his needs. She had seen him in January soon after he had run away from his father’s home at Christmas. She had heard both parents’ version of what occurred, which were different. [X] told her that he was sad for his mother because she was alone at Christmas, which Ms C found difficult to understand because she understood that the mother's mother was visiting at Christmas. She said that [X] was happy and chatty. She did not pursue why he had run away. She was more concerned to discuss with [X] the dangers of going to a stranger's house, although [X] had been well cared for by the lady of the house he went to.
Ms C was contacted by the mother in February when [X] was expressing suicidal thoughts. Ms C spoke to [X] over the telephone and conducted a suicide risk assessment. Ms C said she had done the training for telephone suicide risk assessment. She then saw [X] a few days later. Her assessment was that while [X] acknowledged the statements, he did not intend to take his own life.
So, in addition to the regular appointments, Ms C had seen [X] soon after two events which were of particular concern. She is a psychologist with considerable experience in counselling children. She was an impressive witness. Quite clearly she has a very good understanding of [X] needs.
Towards the end of the evidence I asked Ms C these questions and she answered:
Can I just ask you this, Ms C?----Yes
When you last saw [X] you thought he was doing pretty well?--- Yes, I did.
Would you suggest that the current arrangements for him spending time with each parent are perhaps working quite well?--- Yes, I do. I realize that there’s that-they want to increase it and, you know, that may be so further down the track. And this is what I'm saying to [first name omitted], that it's-I would never put [X] into five nights a week-a fortnight, bang, today. You know, he's going to need a little bit of preparation for this if this does go ahead. And maybe that's what I should have written in the report, and I'm sorry about that. But I think that where he's going and what he's doing, and there is consistency with dad, and he's enjoying that time, it's going really well for him, you know, and I'm here for him. I'm not here for mum and dad; I'm here for him.
Ms D saw the mother, father and [X] soon after [X] had started seeing [X]. She found [X] fragile. She found the conflicted relationship between the parties which both acknowledge. She found that [X] was concerned for his mother and perhaps aligned with her.
Ms D considered that the conflict between the parties made it difficult for [X] to have a relationship with his father. Her recommendation then was that the existing regime continue, that is every second weekend Friday night to Sunday night and time on Tuesday.
Ms C, seeing [X] for counselling in the months after Ms D saw him said his confidence had developed and he enjoyed the current arrangements for time with his father, but would need preparation for an extension to five nights.
Ms C’s observations of [X] and her opinion based on those observations show that Ms D’s recommendation is correct. The existing arrangement benefits [X] because he has a meaningful relationship with his father. An extension of the time, rather than promoting the relationship might damage it.
The second of the primary considerations is the need to protect [X] from harm. The mother alleges that the father gives [X] food with ingredients to which he is allergic. The father denies this is so. His partner, Ms D, was a witness and she said she buys food which [X] can eat. She appeared quite genuine in her concern for [X] and I am satisfied that she wants to do the best for [X] and to accommodate his allergies. This consideration is of no relevance to the time [X] should spend with his father. It is of relevance to the mother’s proposal for an order that would require the father to follow the recommendations of [P]. Such an order is not necessary to protect [X] and is undesirable because it might lead to allegations by the mother of breach and unnecessary litigation.
The evidence about the first of the primary considerations covers the relevant additional considerations in s.60CC. They are the first four considerations:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(I) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
So far as [X]’s expressed views are concerned Ms C concluded from her meetings with [X] that he is happy with the current arrangements.
So far as [X]’s relationship with each parent, particularly his father is relevant what I have already said about meaningful relationship applies equally to the additional consideration of [X]’s relationship with each parent.
There must be some doubt about the mother’s willingness in the past to promote [X]’s relationship with his father, but she has shown that she will comply with court orders and so the evidence of relevance to this consideration is that the mother is likely to comply with orders that are otherwise determined to be in [X]’s best interests.
The evidence is clear that [X] would not currently cope with a change in the current arrangements as proposed by the father and the change might damage his relationship with his father.
Family violence is a consideration. I have already said I cannot make a finding either way.
Neither party proposes continuing the Tuesday night time. The father does not because he proposes all the time in one block. The mother because the father is not proposing it. It is part of the current arrangement which the evidence shows suits [X], and so it is included in the orders.
The parties have agreed on a number of orders which are included.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 18 August 2011
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