Gale and Gale
[2012] FMCAfam 450
•18 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GALE & GALE | [2012] FMCAfam 450 |
| FAMILY LAW – Interim parenting – effect of alcoholism on parenting capacity – consideration of equal time where ADVO proceedings currently before Court of summary jurisdiction. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 64B, 65AA, 65DAA |
| Champness & Hansen (2009) FLC 93-407 Marsdent & Winch (No.3) [2007] FamCA 1364 Collu & Rinaldo [2010] FamCAFA 53 Mazorski v Albright (2007) 37 Fam LR 518 Slater & Light [2011] FamCAFC 1 Aldridge & Keaton (2009) FLC 93-421 at [74] Mulvany & Lane (2009) FLC 93-404 at [84] Goode & Goode [2006] FamCA 1346 Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 T & N [2001] FMCAfam 222 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker and Sealey & Archer [2008] FamCAFC 142 |
| Applicant: | MS GALE |
| Respondent: | MR GALE |
| File Number: | NCC 398 of 2012 |
| Judgment of: | Myers FM |
| Hearing date: | 31 March 2012 |
| Date of Last Submission: | 31 March 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 18 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weightman |
| Solicitors for the Applicant: | Mullane & Lindsay Solicitors |
| Solicitors for the Respondent: | Peter Hamilton & Associates |
PENDING FURTHER ORDERS
The children X born (omitted) 2000 and Y born (omitted) 2002 live with the father.
The parties have equal shared parental responsibility for the children.
The children spend time with the mother contingent upon the mother residing in her parents home as follows:
(a)Each alternate weekend from after-school on Thursday until the commencement of school on Monday;
(b)In the week when the mother returns the children to school on a Monday, from after-school on Thursday until 8.00pm on Friday with the mother collecting the children from school on Friday and the father then collecting the children from the mother’s parent’s home at 8.00pm.
(c)For half of all school holiday periods being the first half in the even-numbered years and the second half in odd numbered years.
(d)from 2.00pm on 24 December until 2.00pm on 25 December in each in each even numbered year.
(e)From 2.00pm 25 December until 5.00pm 26 December in each odd numbered year.
(f)Where the children are not already living with the mother, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.
(g)From the conclusion of school on Friday immediately before Mother's Day each year until the commencement of school on the Monday immediately following Mother's Day each year.
Despite the provisions of order 3 above the children shall spend time with the father as follows:
(a)from 2.00pm on 24 December until 2.00pm on 25 December in each in each odd numbered year.
(b)From 2.00pm 25 December until 5.00pm 26 December in each even numbered year.
(c)Where the children are not living with the father, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.
(d)From the conclusion of school on Friday immediately before Father's Day each year until the commencement of school on the Monday immediately following Father's Day each year.
For the purposes of facilitating the children’s time with the mother and father pursuant to orders 3 and 4 above the children shall be collected and returned to school in the event that such time falls on a day that is a school day, with the exception of order 3b above. In the event that the time spent is not on a school day then facilitation of this time shall occur by the father delivering and collecting the children from the mother's parents’ residence at Property P.
The father must continue to regularly attend on Ms M, or such other a psychologist or counsellor that he chooses from time to time (hereinafter referred to as “FPC”) to obtain assistance and treatment to support him to address issues arising from the breakdown of the relationship and any other issues identified by the FPC which may be affecting the father.
(a)As soon as is practicable the father must provide the FPC a copy of the mothers Initiating Application, Affidavits file on behalf of the mother in these proceedings and a copy of these orders.
The father must continue to attend on the FPC on a regular basis as directed by the FPC and follow all recommendations of the FPC.
The mother must continue to regularly attend on her treating psychiatrist and counsellor (hereinafter referred to as “MPC”) to obtain assistance and treatment to support her to address issues arising from the breakdown of the relationship and any other issues identified by the MPC which may be affecting the mother.
(a)As soon as is practicable the mother must provide the MPC with a copy of the father's response to initiating application, father’s affidavit filed in these proceedings and a copy of these orders.
The mother must continue to attend on the MPC on a regular basis as directed by the MPC and follow all recommendations of the MPC.
Within 7 days each party must provide to the other:-
(a)details of the name and contact details of a their respective FPC or MPC;
(b)Any necessary authorities or consent to their respective FPC or MPC to authorise the FPC or MPC to:
(i)advise the legal representative of the other parent in the event that the parent stops acting on the advice of the FPC or MPC;
(ii)advise the legal representative of the other parent if the FPC or MPC forms the belief that the parent is not capable of caring for the children on an unsupervised basis.
(iii)Advise the legal representative of the other parent if the parent stops receiving treatment, and provide details to the other parent as to the reasons that the parent has stopped receiving treatment.
In the event that either parent begins consulting a different FPC or MPC that party must immediately:-
(a)Notify the other parent of the name and contact details of the new FPC or MPC; and
(b)do all acts and sign all documents necessary to authorise the new FPC or MPC to communicate with the legal representative of the other parent in all aspects as set out in Order 10 above.
Without admission, on a frequency of no more than once per month within 48 hours of the requested in writing by the father's solicitor to do so, the mother must undergo chain of custody supervised carbohydrate deficient transferring testing to test for evidence of excessive consumption of alcohol and provide copies of the results to the father's solicitor as soon as they are available.
Both parents do all acts to enrol in a Parenting after Separation course as soon as practicable, and upon completion of the course must provide a copy of the certificate of completion to the other parent’s solicitor.
Each parent is restrained from denigrating the other parent or members of the other parent’s families in the presence or hearing of the children, and must use their best endeavours to prevent any other person from denigrating the other parent or members of the other parent’s family in the presence or hearing of the children.
Each parent keep the other informed of the current residential address, home telephone number, mobile telephone number and e-mail address and shall provide to the other not less than 24 hours notice of any proposed change of address or telephone number.
Each parent will keep the other informed as to all medical, dental or other health-related treatment being undertaken by either of the children and the identity of the treating professional.
The parent must telephone the other as soon as practicable upon the happening of any of the following:
(a)Any of the children becoming seriously ill.
(b)Any of the children becoming hospitalised.
(c)Any of the children being involved in an accident.
The parties be granted leave to relist the matter on 7 days notice.
The matter is adjourned to 13 June 2012 at 9.30am for a directions hearing and hearing with respect to an argument for costs.
The previous orders made are vacated.
IT IS NOTED that publication of this judgment under the pseudonym Gale & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 398 of 2012
| MS GALE |
Applicant
And
| MR GALE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application concerning the children of the relationship between the applicant mother and the respondent father namely X born (omitted) 2000 currently aged 11 years and Y born (omitted) 2002 currently aged 9 years.
Background
The applicant mother was born on (omitted) 1971 and is currently aged 40 years.
The respondent father was born on (omitted) 1972 and is currently aged 39 years.
The parties commenced living together in about July 1998, and married in Newcastle on (omitted) 1999.
The parties separated in some time between January and March 2012 and now seek interim orders from this court relating to the question of who the children shall live and the amount of time the children shall have with the other with parent, or whether the children should live with the parties in an equal time arrangement.
Documents relied upon and Orders Sought by the Parties
The applicant mother relies on the following documents in support of the orders sought on an interim basis that I have read and considered:
(a)Initiating application filed 20 February 2012;
(b)Affidavit sworn by the applicant mother on 20 February 2012;
(c)Affidavit sworn by the applicant mother on 29 March 2012;
(d)Affidavit sworn by Mr M on 13 March 2012;
(e)Affidavit sworn by Mr S on 13 March 2012.
(f)Minute of proposed interim orders tendered by counsel that sets out the orders sought by the applicant mother forming exhibit ‘C’ in these proceedings.
It should be noted that at the commencement of the interim hearing objection was taken to the reading of the applicant mother’s affidavit sworn on 29 March 2012 on the basis that such affidavit had been filed and served the day prior to the interim hearing and that the reading of such affidavit would cause the respondent father prejudice as he had not had an opportunity to respond to the matters and allegations contained within the affidavit.
Counsel for the applicant mother Mr Weightman made submissions that for the purposes of the interim hearing the applicant mother would accept that the respondent father denied the allegations made against him in particular those arising at paragraphs 4 through to 53 of the applicant mother’s affidavit. Mr Weightman further indicated that the applicant mother would not put by way of submission during the interim hearing that the children were at risk in the father’s care. On the basis of Mr Weightman’s submissions the mother’s affidavit sworn on 29 March 2012 was then admitted and read.
The respondent father relies on the following documents in support of the orders sought on an interim basis that I have read and considered:
(g)Response to Initiating Application filed 8 March 2012;
(h)Affidavit of the respondent father sworn 8 March 2012;
(i)Psychological report of consultant psychologist Ms M dated 12 March 2012 forming exhibit ‘A’ in these proceedings;
(j)Notes produced on subpoena to CatholicCare marked with tabs F1 and F4 forming exhibit ‘D’ in these proceedings;
(k)Notes produced on subpoena to Dr S marked with tabs F2, F4, F6, F7 and F8 forming exhibit ‘E’ in these proceedings;
(l)Notes produced on subpoena to Dr G marked with tabs F2 and F4 forming exhibit ‘F’ in these proceedings;
(m)Letter of Ms M dated 24 February 2012 forming exhibit ‘G’ in the proceedings.
Accepted into evidence at the commencement of the hearing, forming exhibit ‘B’ in the proceedings was the Family Consultant Memorandum to Court prepared by family consultant Mr C dated 30 March 2012 that I have read and considered.
Orders sought by the applicant mother.
The applicant mother initially sought interim orders in her Initiating Application with respect to the lives with and spends time arrangements for X and Y. A summary of the applicant mother’s orders relating to the specific issues of parental responsibility and the lives with, and spends time with, arrangements for the children is set out below using the applicant mother’s numbering for ease of reference:
3. That until such time as the father complies with orders 5, 6 and 7:-
3.1 the mother having sole parental responsibility for the children.
3.4 the children live with the mother.
3.5 the children spend time with the father as agreed between the parents in writing, but failing agreement on a supervised basis for 2 periods of 2 hours each week.
3.6 unless otherwise agreed between the parties the children's time with the father is to be supervised by (omitted) Service.
3.7 – 3.12 orders relating to the appointment of the supervisor and directions as to how supervision is to take place.
13.13 that the children communicate with the father by telephone 3 times each week as agreed and faiing agreement on Monday and Wednesday and Friday between 6:30pm and 8:30pm.
4. Upon the father complying with orders 5 and 6 and 7:
4.1 that the parents have equal shared parental responsibility for the children
4.2 the children live with each parent in a week about arrangement, commencing at the conclusion of school on Wednesday until the conclusion of the school on the following Wednesday.
4.3 and notwithstanding 4.4:-
4.3.1 and 4.3.2 both parties spend time with the children at alternating times on 24, 25 and 26 December in each year, the parent with whom the children are not spending time with them for a period of 4 hours with the children on their birthday and the mother have the Mother's Day weekend and the father the Father's Day weekend.
5.That within 7 days of the date of the orders the father must attend on a psychologist or counsellor (hereinafter referred to as “the health practitioner”) to obtain assistance and treatment to support him and to address issues arising from the breakdown of the relationship and any other issues identified by the health practitioner which may be affecting the father.
5.1 the father must provide the health practitioner with a copy of the mothers initiating application and affidavit filed in these proceedings.
6.The father must continue to attend on the health practitioner on a regular basis as directed by the health practitioner and follow all recommendations of the health practitioner.
7. That within 7 days each party must provide to the other:-
7.1 details of the name and contact details of the respective health practitioners;
7.2 any necessary authorities or consent to their respective health practitioner to authorise health practitioner to:-
7.2.1Advise the other parent in the event that the parent stops acting on the advice of the health practitioner;
7.2.2Advise the other parent if the health practitioner forms the belief that the parent is not capable of caring for the children on an unsupervised basis;
7.2.3Advise the other parent if the parents stops receiving treatment, and provide details to the other parent as to the reasons that the parent has stopped receiving treatment.
A summary of the minute of proposed interim orders sought by the applicant mother that forms Exhibit “C” in the proceeding is set out below:
1.That subject to both parties comply with orders 2 - 7 herein:
1.1 that the parents have parental shared responsibility for the children X and Y.
1.2 The children live with each parent in a week about arrangement, commencing at the conclusion of school on Wednesday and concluding at the conclusion of the school on the following Wednesday.
1.3 That notwithstanding 1.2:-
1.3.1The children spend time with the mother:
1.3.1.1from 2.00pm on 24 December in each even year until 2.00pm on 5 December in each year
1.3.1.2where the children are not already living with the mother, a period of 4 hours of each of the children's birthdays;
1.3.1.3from the conclusion of school on Friday immediately before Mother's Day each year until the commencement of school on the Monday immediately following Mother's Day each year.
1.3.2The children spend time with the father:-
1.3.2.1from 2.00pm on 25 December in each year until 2.00pm on 26 December in each year.
1.3.2.2Whether children are not already living with the father, a period of 4 hours of each of the children's birthdays;
1.3.2.3from the conclusion of school on Friday immediately before Father's Day each year until the commencement of school on the Monday immediately following Father's Day each year.
1.4 That the children communicate with the other parent by telephone at agreed times, and failing agreement 3 times each week on Monday, Wednesday and Friday between 6:30pm and 8:30pm to be implemented by the non-lives with parent telephoning the children on X's mobile telephone.
1.4.1Each parent is restrained from discussing with the children any adult issues including these proceedings, property settlement matter between the parents, child support matters, and if either parent becomes aware of the other parent discussing such issues impaired is at liberty to monitor the telephone communication between the other parent and the children until such time as the other parent desists from such conduct.
2That the father must continue to regularly attend on Ms M, or such other a psychologist or counsellor the father chooses from time to time (hereinafter referred to as “the health practitioner”) to obtain assistance and treatment to support him to address issues arising from the breakdown of the relationship and any other issues identified by the health practitioner which may be affecting the father.
2.1 The father must provide the health practitioner with a copy of the mothers Initiating Application and Affidavits file on behalf of the mother in these proceedings.
3The father must continue to attend on the health practitioner on a regular basis as directed by the health practitioner and follow all recommendations of the health practitioner.
4That the mother must continue to regularly attend on her treating psychiatrist and counsellor (hereinafter referred to as “the health practitioner”) to obtain assistance and treatment to support her to address issues arising from the breakdown of the relationship and any other issues identified by the health practitioner which may be affecting the mother.
4.1 The mother must provide the health practitioner with a copy of the father's response to initiate application and affidavit filed in these proceedings.
5The mother must continue to attend on the health practitioner on a regular basis as directed by the health practitioner and follow all recommendations of the health practitioner.
6That within 7 days each party must provide to the other:-
6.1 details of the name and contact details of a their respective health practitioners;
6.2 any necessary authorisations or consent to their respective health practitioner to authorise the health practitioner to:-
6.2.1advise the legal representative of the other parent in the event that the parents stops acting on the advice of the health practitioner;
6.2.2advise the legal representative of the other parent if the health practitioner forms the belief that the parent is not capable of caring for the children on an unsupervised basis.
6.2.3Advise the legal representative of the other parent if the parent stops receiving treatment, and provide details to the other parent as to the reasons that the parent has stopped receiving treatment.
7In the event that either parent begins consulting a different health practitioner he or she must immediately:-
7.1 provide the other parent the name and contact details of the new health practitioner; and
7.2 do all acts and sign all documents necessary to authorise the new health practitioner to communicate with the legal representative of the other parent in all aspects as set out in Order 5 above.
8That, without the admission, on a frequency of no more than once per month within 48 hours of the requested in writing by the father's solicitor to do so, the mother must undergo chain of custody supervised carbohydrate deficient transferring testing to test for evidence of excessive consumption of alcohol and provide copies of the results to the father's solicitor as soon as they are available.
9That both parents do all acts to enrolled in a Parenting after Separation course as soon as practicable, and upon completion of the course must provide a copy of the certificate of completion to the other parent’s solicitor.
10That each parent is restrained from denigrating the other parent or members of the other parent families in the presence or hearing of the children, and must use their best endeavours to prevent any other person from denigrating the other parent or members of the other parent family in the presence or hearing of the children.
11That each parent inform the other of the current residential address, home telephone number, mobile telephone number and e-mail address and shall provide to the other not less than 24 hours notice of any proposed change of address or telephone number.
12That each parent will keep the other informed as to all medical, dental or other health-related treatment being undertaken by either of the children and the identity of the treating professional.
13The parent must telephone the other as soon as practicable upon the happening of any of the following:
13.1 Any of the children becoming seriously ill:
13.2 Any of the children becoming hospitalised:
13.3 Any of the children being involved in an accident.
It should be noted that the major difference between the applicant mother’s first position and that as contained within the Minute of Proposed Interim orders that form Exhibit ‘C’ in the proceedings is that, the applicant mother in the orders now agitated before the court no longer seeks that the father’s time be spend on a supervised basis with the children contingent upon the father completing a set of criteria relating to him receiving treatment from a psychologist or counsellor, or at all.
The respondent father initially sought orders as set out in the response to Initiating Application filed by him on 8 March 2012.
In the respondent father’s Response documents the respondent father agreed with orders 5, 6, 7, 8, 9, 10, 11 and 12 of the applicant mother’s Initiating Application. The orders sought by the applicant mother in her Initiating Application and those sought as contained within the Minute of Proposed Interim orders that form Exhibit ‘C’ in the proceedings are not identical.
Set out below is a list of orders that correspond with one another in the applicant mother’s two documents referring only to those orders agreed by the respondent father:
Order 5 of the Initiating Application is identical to Order 2 of the Minute of Proposed Interim Orders with the exception that in the Minute of Proposed Interim Orders the respondent father's psychologist Ms M is named.
Order 6 of the initiating application is identical to order 3 of the minute of proposed interim orders.
Order 7 of the initiating application is identical to order 6 of the minute of proposed interim orders.
Order 8 of the initiating application is identical to order 7 of the minute of proposed interim orders.
Order 9 of the initiating application is identical to order 10 of the minute of proposed interim orders.
Order 10 of the initiating application is identical to order 11 of the minute of proposed interim orders.
Order 11 of the initiating application is identical to order 12 of the minute of proposed interim orders.
Order 12 of the initiating application is identical to order 13 of the minutes of proposed interim orders.
The respondent father in his Response initially sought the following orders:
1.The children live with the father.
2.That the parties have equal share of responsibility for the children.
3.The children spend time with the mother upon receiving correspondence from the mother's treating psychiatrist that she is able to care for the children on an unsupervised basis and being provided by the mother with evidence that she has completed an alcohol rehabilitation course:
(a) on each alternate weekend from after-school on Thursday until the commencement of school on Monday;
(b) on the week when the mother is not spending time with the children, from after-school on Thursday until 8.00pm on Friday.
(c) For half of all school holiday periods being the first half in the even-numbered years and the second half in odd numbered years.
4.That until such time as the mother has obtained correspondence from her treating psychiatrist and until she has completed the Alcohol Rehabilitation Course and provided the father with a copy of a certificate indicating its completion, then the mother spent time with the children supervised by her parents from 9.00am until 5.00pm on Saturday and Sunday and on Wednesday afternoon in the other week from after-school until 8:30pm.
5.That implementation of Order 4 above occur at the children’s school in the event that it is a school day. In the event that it is not a school day then implementation of this time occur by the father delivering and collecting the children from the mother's parents residence at Property P.
6.That implementation of Order 5 above occur by the father delivering and collecting the children from the mother's parents residence at Property P.
At the commencement of the hearing the solicitor for the respondent father was granted leave to amend the times as provided for in order 3 (a) and (b) of the respondent father’s Response as follows:
3.
(a) each alternate weekend from Friday collection at school return to school Monday
(b) collection from school on the Thursday return to school on Friday morning in the week in which the children return to school on Monday morning.
During the course of the hearing, that was conducted by way of submissions, the solicitor for the respondent father was granted leave to further amend the respondent father’s response removing order 3 in its entirety and the conditions at order numbered 4 thus removing the respondent father’s requirement that the children only spend supervised day time with the mother until the applicant mother had obtained correspondence from her treating psychiatrist and until she has completed the alcohol rehabilitation course and provided the respondent father with a copy of a certificate evidencing the applicant Mother's completion of such course.
It was my reading order 4 as contained within the respondent father's response that it was not clear as to define what correspondence was to be obtained from the applicant mother's treating psychiatrist. This is of course of little consequence in circumstances where the respondent father no longer seeks such orders.
The Evidence
When reading the parties’ affidavits it is apparent that the parties separated in January 2012. It is an agreed fact that the parties lived under the same roof until the respondent father moved out of the then former matrimonial home to reside in a caravan park in (omitted). In the applicant mother’s affidavit sworn 20 February 2012 it is suggested that the respondent father moved to the caravan park in (omitted) on 7 February 2012. The respondent father in his affidavit sworn 8 March 2012 suggests he moved out of the former matrimonial home to a caravan park in (omitted) on 9 February 2012. For the purposes of these proceedings I make no finding as to the date on which the respondent father moved out of the former matrimonial home as it is my view the actual date has no impact on the matters to be decided by this court on an interim basis.
The applicant mother deposes in her affidavit sworn 20 February 2012 at paragraph 8 that following separation the parties agreed to implement a week about shared care parenting arrangement for X and Y.
The applicant mother's deposes in her affidavit sworn 20 February 2012 that the respondent father as recently as 13 February 2012 accepted the shared care arrangement referring to a text message the respondent father is alleged to have forwarded to her that reads
“… I have just one thing it to thank you for and that is my children… they are my life and having to share them is tearing me apart, but I know that is the best thing for them…”
The applicant mother deposes that this arrangement continued until about 4:53p.m. on 14 February 2012 following the respondent father sending the applicant mother what is alleged to be a text message indicating the father contemplating suicide. The text message stated:
“you drove me to the brink of death. I did not know if I was going to survive yesterday, with my grip on reality plunging below suicide..”
The applicant mother deposes that following the receipt of that text message the children were due to go into the respondent father's care. At approximately 6:56p.m. the applicant mother received a text message from the respondent father suggesting he would go to the applicant mother's home for the purposes of discussing their daughter Y's schooling.
The applicant mother deposes that she telephoned her mother (the maternal grandmother) and asked the maternal grandmother to take the children to the maternal grand mother's home. The applicant mother then telephoned her brother to come to the home because she was apprehensive about being left alone with the respondent father.
It is a applicant mother's evidence at paragraph 15 and 16 of her affidavit affirmed 20 February 2012 that she initially had a conversation with the respondent father in which she enquired as to whether the respondent father was serious about the message mentioning suicide to which their father is alleged to have answered
“Yes…It’s your fault. You've done this”.
The applicant mother is alleged to have asked whether the father was getting any professional help either now or in the future to which the father is alleged to have responded that he was not and that it was none of the applicant mother's business.
The applicant mother in her affidavit alleges that she advised the father that
“When it's about the children it is her business”.
At paragraph 16 of the applicant mother alleges the father then began screaming shouting and swearing at her telling and the mother
“You don't fucking deserve them. They're my children”.
Ultimately the father left the home and went outside and spoke with the applicant mother's brother telling him he was going to get the kids.
The applicant mother submits that the respondent father left the home and the applicant mother telephoned the police. The mother deposes that a short time later the maternal grandmother telephoned her and advised her that the respondent father was on his way back to the home. The applicant mother alleges the respondent father returned and began shouting at her words the effect that the mother was a terrible mother, that he wished he had not tried to save her life last year and at paragraph 25 allegedly called the applicant mother a
“a low piece of shit”
And stated
“that’s it I am going for full custody”
And further that the respondent father would call DOCS on the applicant mother.
The applicant mother alleges at paragraph 29 of her affidavit that her brother Mr C told her that the father of driven across the front lawn of the applicant mother's parents’ home and also across the front lawn of the applicant mother's parents’ next door neighbour’s home.
The applicant mother then deposes at paragraph 30 of her affidavit that she spoke with a police officer regarding the incident and that the police officer had indicated to the applicant mother that she had done “ the right thing” and that the police officer would” go and see him and encourage him to check himself in to the (omitted) Mental Health Unit” and further that the police officer indicated to the applicant mother “ you should call the school and tell them not to let the children go with Mr Gale if he comes to pick them up tomorrow”.
The applicant mother states at paragraph 31 that she was concerned about the respondent father returning to the home and thereafter left to stay with the children at her parent’s home.
The applicant mother alleges that the respondent father telephoned X’s mobile phone and left a message on that phone to the effect that the applicant mother was trying to take the children away from him, that he would not let her do that and would be going for full custody.
At paragraph 34 - 45 the applicant mother sets out a series of conversations in which the applicant mother alleges the respondent father spoke with instant messages to the children on their mobile telephones relating to the dispute that was taking place between the parties and that the applicant father would be “ working with the solicitor” to “get full custody”.
At paragraphs 46 to 54 applicant mother deposes to a number of discussions and correspondence that took place between herself, the respondent father and the party's respective solicitors that led to an agreement being reached whereby the children were to spend time with the father on 19 February 2012 supervised by the party's mutual friend Mr W.
At paragraph 56 of the applicant mother's affidavit the applicant mother sets out the contents of a discussion between Y and herself in which Y is alleged to have said that she was scared “Because Daddy is sick and he might try to take us away”. The applicant mother then sets out that she provided Y was some reassurance stating “you have nothing to worry about. Mr W and Ms J will be there to make sure you are all right”. The applicant mother gives evidence that X was present during this discussion and said to Y “don’t worry bubby, I am almost as tall as Daddy now and I will look after you”.
The applicant mother alleges at paragraph 58 of her affidavit that X said to her when discussing the respondent father seeking full custody of the children “Don't we get a say mum? If daddy does that and I won't go with him”
The applicant mother at paragraphs to 62 to 70 of her affidavit discloses that in December 2007 that she suffered from anxiety, received professional help, treatment and advice from her health practitioner; in January 2010 she suffered depression and had not obtained professional help ultimately leading to the depression becoming so bad that on 8 May 2010 she attempted to commit suicide. The applicant mother states that following the suicide attempt she consulted with Dr S a registered psychiatrist and has continued to see Dr S as recently as 20 January 2012 and has been prescribed the medication Cymbalta and Lamictal. The applicant mother deposes that she has regularly taken her medication in accordance with Dr S's advice.
The applicant mother discloses that whilst suffering from depression and what the mother describes as “marital issues” at paragraph 67 of her affidavit, she was consuming too much alcohol. The applicant mother opines that her alcohol problem was diagnosed as a symptom of her depression and marital issues.
The applicant mother deposes the she has sought assistance from Ms K a Counsellor with Catholic Family Health and Children's Services whom she has been working with it since about October 2000. The mother deposes Ms K has helped her identify triggers and warning signs for her depression and that she continues to see (omitted) once a week. The mother deposes that she has not been intoxicated since 11 January 2012 and has completely abstained from alcohol since 26 January 2012 and at no time since 11 January 2012 had she been in the company of the children having consumed alcohol. It is important to note when the court considers the applicant mother’s evidence as set out in her affidavit affirmed on 20 February 2012 that only some five weeks had elapsed since the date of the filing of that affidavit and the date on which she was last intoxicated in the presence of the children.
The applicant mother caused to be e-filed on 29 March 2012 two days prior to the commencement of the hearing an affidavit she swore on 29 and March 2012. The affidavit is purported at paragraph 4 to only address the “major events that have occurred since affirming” the applicant mother’s earlier affidavit.
At paragraph to 19 of the applicant mother's affidavit affirmed 29 March 2012 she deposes to events that took place on 21 February 2012 in which the respondent father is alleged to have acted in an aggressive manner towards the mother whilst they were both driving in their respective motor vehicles. The applicant mother deposes that she spoke with police who thereafter applied for is a domestic violence order a copy of which is annexed to the applicant mother's affidavit and marked with the letter “A”.
The Grounds of Application contained within the Application for the apprehended domestic violence order filed in the Local Court at (omitted) states:
“The victim, Ms Gale and the POI Mr Gale, have been married 14 years and as a result of this marriage they have two children together. The marriage has broken down with the children being in the custody of the victim at Property P. There has been previous disputes about the custody of the children which has led to previous domestic arguments and police attendance.
About 1700hrs on Tuesday 21st of February 2012 the victim, has been contacted by the POI stating that he could not contact his son by telephone and that he wanted to know his location. The victim has informed the POI that the children were at her mother's place, Property P.
The POI has immediately attended the victim's mother's place and began to demand to see his children. As a result police have been called. Police have attended the scene and spoken to the victim who informed police that she held fears about the safety of the children in the custody of the POI. The victim also stated that she believed that the POI was mentally unstable and that he has continually attended her mother’s address demanding to see his children and as a result she also held fears for her own safe due to the harassment of the POI. The police spoke to the POI who stated that the victim is not allowing him access to his children. The POI was unreasonable and argumentative to the police.”
I note that the Grounds of Application as contained within the Application for a Domestic Violence Order refers to be respondent father as being “mentally unstable”. I further noted that the grounds fail in whole to make any mention that the respondent father had threatened suicide as is propounded within the applicant mother's affidavit affirmed on 20 February 2012 at paragraphs 10 - 15.
The applicant mother at paragraph 20 – 26 of her affidavit affirmed 29 March 2012 sets out a series of communications that were alleged to have taken place on 28 February 2012 between the respondent father and her. The communication can best be described a poor. Similarly the applicant mother at paragraphs 27 to 37 relays a series of communications that are alleged to have taken place on 2 March 2012 between the parties and the and the parties and the children. Again the best description of the communication between the parties is poor.
At paragraphs 38 – 40 the applicant mother sets out details of the status of the application for an Apprehended Domestic Violence order confirming that an interim order was put in place at the (omitted) Local Court on 15 March 2012 and that the application was set down for a contested hearing on 13 July 2012. If I was in any doubt as to the state of the parties’ communication the current interim orders and defended hearing lend considerable credit to my view that the communication and indeed parenting relationship between the parties had reached a significant low.
At paragraphs 41 – 50 of the applicant mother’s affidavit she sets out a series of communications which she opines demonstrate the applicant mother’s genuine attempts to facilitate the children spending time with the father. The applicant mother is clear to point out that the children have missed their father. The shortcomings of the parties communication and eroded state of their relationship is in my view again clearly demonstrated by the parties inability to reach and agreement or indeed compromise as to the circumstances in which the children were able to spend time with the respondent father.
At paragraph 51 – 53 the applicant mother sets out a series of text messages that the respondent father is alleged to have forwarded to the applicant mother in support of the applicant mother’s contention that the respondent father was harassing her.
At paragraph 54 the applicant mother rejects what she proposes is an assertion by the respondent father that she will continue to consume alcohol to excess. At paragraph 55 the applicant mother deposes to having undertaken a carbohydrate deficient transferring test which the applicant mother proposes
“tests for the excess consumption of alcohol”. The results of such test were not annexed to the affidavit in circumstances where the applicant mother sets out that she was “informed that the results will take about 28 days”
and that she was willing to pass the results to the respondent father’s solicitor when they were available. The mother does however annex to her affidavit what appears to be a certificate that is marked “B” that evidences that the mother had undertaken such a test.
The applicant mother annexes to her affidavit a one page report of Dr S that confirms that the mother has suffered a “recurrent depressive disorder” and that she had been treated with mood stabilising and anti depressant medication. The report also states that the applicant mother
“had a history of excessive alcohol intake in the past and this has been addressed with advice and self monitored change of habits. The alcohol difficulty was mild…Throughout the time that I have known her, over 12 months now, she has been a reliable and honest individual who has engaged in treatment and responded effectively to the managements that have been prescribed. Currently both her depressive symptoms and her alcohol use are in remission despite the pressure she is experiencing in her marital breakup”.
It is not clear from that report whether Dr S is aware that the applicant mother was last intoxicated on 11 January 2012 and had not abstained from consuming alcohol as late as 26 January 2012 (as set out at paragraph 67 of the applicant mother affidavit affirmed 20 February 2012) only some 8 weeks prior to Dr S’s report being written. For this reason the court gives the report little weight.
At paragraph 72 -76 the applicant mother sets out what she terms the “care responsibilities” for the children as far back as 2009. What of course must be remembered in these proceedings is that prior to the current application before the court the party enjoying a regime whereby the children lived with the parties in an equal time arrangement.
At paragraph 77 - 85 of the applicant mother's affidavit she again refers to the issue of alcohol consumption denying the respondent father’s assertion that she drank to excess following the birth of the children and following her mother’s passing in 2003. The applicant mother proposes that both she and the respondent father regularly consumed alcohol throughout the relationship and at times both consumed alcohol to excess for example at parties or social functions.
The applicant mother deposes that she was very unhappy in the party's marriage from about 2011 and used “alcohol as a crutch to help” her “deal with… marital issues and other issues which arose at that time”. The applicant mother goes on to state that she was working with her counsellor Ms K to reduce her alcohol intake. Importantly the applicant mother states
“Ms K and I implemented a keen step process to take me from the position I was unique in the 2011 where I drank to feel happy, to a position where I could be happy without drinking”.
The paragraph 86-90 the applicant mother sets out her evidence with respect mental heath issues and denies she spent week in hospital following the suicide attempt or that she took one month off work. The applicant mother instead proposes that she was in hospital for a few days and had about 2 ½ weeks of work and that the period of work included 4 days prior to the suicide attempt and the period in which the applicant mother was in hospital.
The applicant mother denies she left a series of suicide notes setting out at paragraph 87 that she had written such notes as annexed to the respondent father’s affidavit on the same day. The applicant mother also suggests that she attempted to contact the respondent father's psychologist but was unable to elicit any information.
In addition to the applicant mother's two affidavits that I have read and considered I consider the affidavits of Mr S and Mr M below.
The Affidavit of Mr S sworn 13 March 2012 sets out that Mr S has known the applicant mother in a professional capacity for some 10 years. Mr S deposes that the applicant mother was exposed to a stressful work environment in that Mr S has been made aware that the applicant mother was bullied and sexually harassed by the former CEO and Managing Director. The affidavit suggests that the applicant mother is able to work flexible hours in order to care for the children.
Mr M in his affidavit sworn 13 May 2012 deposes that he is the father of the applicant mother and the maternal grandfather of the children. Mr M recounts a history of the care of the children by the applicant mother and recounts a conversation that he had with the applicant mother that took place on 14 February 2012. I note that Mr M reports at paragraph 18 that the applicant mother called him and said:
“I got some text messages from Mr Gale last night. He’s saying that he’s a broken man and that he has left work indefinitely. He spoke to the kids last night and again this morning and both times he was in tears. The kids are getting upset about him crying during their phone calls. I though it might be good for him to spend some time with X, so I’ve organised for him to spend the day with X and take him to his appointments. I think it will be good for Mr Gale to stay busy. So I don’t need you to take X to his appointments today”.
The statement of the conversation between Mr M is in my view in stark contrast to the applicant mother’s version of the events of 14 January 2012. It is my view that the dates on which events are alleged to have taken place vary and I am left wondering whether the conversation that deposed to by Mr M above in fact took place on 15 February 2012 rather than 14 February 2012. In any case I note that Mr M makes no mention of his daughter having relayed to him anything about the respondent father having threatened suicide. The conversation between the applicant mother and Mr M relates none of the urgency or concerns suggested by the applicant mother in her affidavit sworn 20 February 2012 at paragraphs 10 and 11.
While much of Mr M’s affidavit contains second hand hearsay and as such carries limited weight it does however set out in some detail the significant difficulties the parties have had in their communication regarding the children and parenting arrangements. Mr M confirms in his affidavit that the applicant mother has been staying with Mr M and his wife since 14 February 2012; that the applicant mother has not consumed alcohol in Mr M’s presence and that the applicant mother is
“coping extremely well under the circumstances, maintaining a level head..”
What I think is clear from the affidavit is that Mr M is a loving and caring Father and grandfather concerned to ensure the safety of both the applicant mother and the children.
The respondent father caused to be filed in the proceedings his affidavit sworn 8 March 2012 that I have read and considered. The respondent father was not afforded the opportunity to file an affidavit responding to the allegations made against him in the applicant mother’s affidavit affirmed 29 March 2012. This issue has been canvassed earlier in this judgment.
The respondent father’s at paragraphs 8 – 28 deposes to a history of care of the children and a long history of alcohol abuse by the applicant mother. At paragraph 28 -30 the respondent father deposes that the applicant mother’s mental health began to deteriorate and that the applicant mother began to argue with Y and that ultimately Y ran away.
At paragraph 34 - 37 the respondent father deposes that in May 2010 the applicant mother attempted suicide by overdosing on prescription sleeping pills and was ultimately admitted to the (omitted) Mental Health Unit. The respondent annexes to his affidavit 3 suicide notes. I am conscious of the mother evidence at paragraph 87 of her affidavit affirmed 29 March 2012 in which the applicant mother accepts the notes as being her notes but argues that they were all written at the same time on 8 May 2012. The notes are in effect 3 separate letters with one letter addressed to the respondent father and one to each of the children. The letters are heartfelt and provide an apology to the applicant father and each of the children for the applicant mother having taken her own life. The letters appear to have meant to be read after the applicant mother had deceased. While the letters inclusion in the respondent father’s affidavit is no doubt extremely painful to the mother to read I make no criticism of the father having annexed them to his affidavit as they hold significant probative value in demonstrating what I believe to be the mother’s genuine desire to end her life in 2010.
At paragraphs 43 – 52 the respondent father deposed to the applicant mother continuing to suffer from depression and alcohol abuse. The respondent father deposes at paragraph 53 that the respondent mother forwarded him a text message on 11 January 2012 to the effect that the applicant mother was giving up alcohol or a least until she was able to have a glass of champagne in Paris
The respondent father deposes at paragraph 55 of his affidavit that he and the applicant mother separated under the same roof on 16 January 2012. At paragraph 57 the respondent father deposes that at about the time of separation the applicant mother indicated that she had given up drinking and at paragraph 58 that the parties attended mediation and agreed to a shared care arrangement for the children.
At paragraphs 59 to 79 the respondent father deposes to considerable communication between the parties that can only be described as poor, uncompromising and demonstrative of a lack of cooperation between the parties.
At paragraph 80 – 85 the respondent father raises his concerns that the applicant mother suffered from post natal depression, bi polar disorder and anxiety. At paragraph 83 the respondent father states “Ms Gale is in my view an alcohol” which I take to mean alcoholic.
At paragraph 86 – 101 the respondent father responds to the allegations as made against him in the applicant mother’s affidavit affirmed 20 February 2012. The respondent father does in my view skate around the issue of the original text message of 14 February that the mother alleges was sent at 4.53pm. I have formed the view that the message was probably sent by the respondent father to the applicant mother. What is in doubt however is whether that message was a real indication of any intent by the applicant father to cause himself harm or indeed noting the evidence of the Mr M whether the applicant mother took it as such.
The respondent father at paragraphs 102 – 108 provides the respondent father’s conclusions about his desire for the children to maintain a meaningful relationship with the mother, a regime of treatment the respondent father considers the applicant mother ought undertake that the mother has stopped drinking before and then started again and further that the respondent father is not suicidal.
Tendered by the respondent father’s solicitor during the course of the hearing was a report of psychologist Ms M dated 12 March 2012. That report forming exhibit “A” in the proceedings contains a psychological counselling assessment together with what can at very best be described as a simple retelling of the information passed on to the psychologist by the respondent husband and at worst histrionics revolving around the disintegration of the parties relationship. The report does tend to indicate the respondent father is not suffering any significant mental instability, although this conclusion must be gleaned from the reading of a conversation Ms M purports had occurred between herself and the applicant mother.
Of greater weight and probative value was the Family Consultant Memorandum to Court prepared by family consultant Mr C prepared on 30 March 2012 and admitted into evidence as exhibit B in the proceedings. The report was prepared following child inclusive interviews. Mr C in his report noted that
“X expressed a preference for a week about shared care arrangement. This is a common sentiment expressed by children who are keen not to upset or go against one parent. X’s expressed views should be considered with considerable caution. It is noted that X is very young for year seven and presumably started school when he was aged four years and nine months. X expressed very high confidence that her (sic) mother would remain free from alcohol and associated problems”.
Mr C went on to discuss Y stating
“nine year old Y was clearly very anxious and strongly appeared to be feeling considerable stress and strain….Y expressed a clear moderate preference to live predominately with her father and spend significant and substantial time with her mother…Y maintained her preference for wanting to live predominantly with her father but did not want to miss out on being with her brother…Y expressed high confidence that her mother would remain free from alcohol and associated problems”.
What is abundantly clearing my view flowing from the Family Consultants Memorandum to the court is both children have knowledge of the mother past alcohol abuse and that there is a great desire by both children that the applicant mother remains free of alcohol abuse.
Accepted into evidence forming exhibit “D” is the notes of applicant mother subpoenaed from CatholicCare (omitted). The notes confirm the applicant mother’s depression, anxiety and also alcohol abuse.
Accepted into evidence forming exhibit “E” in the proceedings is the medical notes of the mother subpoenaed from Dr S. The notes confirm the applicant mother’s prescription of anti depressant and mood stabilising drugs. Contained within the notes is a letter to Dr S from (omitted) Medical Centre dated 14 July 2011 that states under heading past history “29 November 2007 Condition BIPOLAR”. Contained within the notes is a letter to Dr G dated 21 May 2010 in which Dr S writes “There is a background family history of Bipolar Disorder, but only the slightest hint of any mood change for Ms Gale and I suspect that it is a diagnosis that we will just keep in the background as the main diagnosis at present appears to be that of Major Depression with some melancholic features”.
Further contained within the notes is a discharge referral of Mr F/(omitted) Mental Health dated 12 May 2010. The discharge summary notes that the applicant mother had ingested some 21 tablets of Temazepan and that she required a stay in hospital as she was a risk to herself.
Accepted into evidence and forming exhibit “F” in the proceedings are the notes of Dr G. Dr G’s notes confirm the applicant mother’s issues with alcohol, depression, anxiety and possible Bi Polar disorder.
Accepted into evidence and forming exhibit “G” in the proceedings is a letter of Psychologist Ms M that sets out what Ms M terms as an agreement for the respondent father to attend her to undergo psychological counselling.
During the course of the hearing Counsel for the applicant mother and the solicitor for the respondent father made various submissions. I have taken into account the submissions advanced on behalf of both parties in arriving at the decision in this matter.
The Law
The principles relating to parental responsibility, arrangements as to who a child lives with and spends time including parents, and other people interested in the child’s welfare, are set out at section 64B of the Family Law Act 1975. They arise in proceedings conducted under Part VII of the Family Law Act1975.
Unless the court rebuts the statutory presumption in favour of equal shared parental responsibility, section 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. Parental responsibility is defined at section 61B as all of the duties, powers, responsibilities and authorities which, by law, parents have in relation to the child. The presumption in favour of equal shared parental responsibility relates to parental decision making and does not prescribe where or with whom a child should live.
Section 61DA(2) provides that the presumption does not apply where there exists reasonable grounds to believe that a parent or a person who lives with a parent of a child has engaged in family violence or child abuse. The presumption may also be rebutted where a court is satisfied it would not be in the child’s best interests in accordance with section 61DA subparagraph (4). In circumstances where the court determines the presumption does not apply or is rebutted, the court must decide the appropriate parental responsibility arrangements.
This is a matter in which the parties have agreed and there should be equal shared parental responsibility. Section 60B sets out the objectives of Part VII of the Act when deciding whether to make a particular parenting order, including an order concerning parental responsibility, section 60CA and section 65AA provide that the child’s best interests remain the paramount consideration. Section 60B sets out the objects of Part VII of the Act within which the relevant section 60CC factors are to be examined, weighed and measured.
Section 60B states:
6OB(1)The objects of this Part are to ensure that the best interests of the child are met by:
(a) ensuring the child is to 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 the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except where it is or would otherwise be contrary to the child’s best interests):
(a) that the child have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been 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 children in this matter are not Aboriginal children or of Aboriginal descent. I do not therefore propose to further consider subparagraph (e) of Section 60B.
When determining what parenting arrangements are in the best interests of a child the court is required to consider those matters set out at section 60CC. 60CC contains two primary considerations. S.60CC(2)(a) provides the court must consider the benefit of a child having a meaningful relationship with both of the child’s parents.
The second primary consideration is that at S.60CC(2)(b) and requires the court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As far as they are relevant to this case the court must consider 13 additional considerations set out at section 60CC(3)(a) to (m). Paragraph (m) allows the court to take into account any other fact or circumstance the court thinks is relevant.
The legislative framework set out at S.60CC(2) and (3) allows the court to consider an almost infinite variety of the children’s circumstances. S.60CC(4) requires the court to also consider the extent to which each parent has fulfilled or failed to fulfil his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities.
The Full Court (Thackray, O’Ryan and Benjamin JJ) in Champness & Hansen (2009) FLC 93-407 at 83,502 considered the question of the hierarchical relationship between the considerations set out at section 60CC stating:
“It is true the primary considerations are “above” the additional considerations in the sense they appear first in s 60CC. However, we do not accept the premise inherent in the submission of counsel for the father that the primary considerations will always outweigh the additional considerations.
We concur with the view expressed by Warnick and Thackray JJ in Marsden & Winch (No. 3) [2007] FamCA 1364 concerning the relationship between the primary and additional considerations. In that matter their Honours said:
77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78.It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.”
The Full Court later observed at 83,502:
“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.”
The Full Court ultimately held at 83,513 found: “the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
The order in which the court is to considers the matters set out at Section 60CC was reviewed by the Full Court (May, O’Ryan & Strickland JJ) in Collu & Rinaldo [2010] FamCAFA 53 where the Full Court stated at 335:
“There is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright (2007) 37 Fam LR 518 per Brown J.
While it might be attractive in some cases to examine those considerations at Section 60CC(3) prior to the primary consideration of Section 60CC 2(a) and (b) it is not mandatory. Following the decision in Collu & Rinaldo the Full Court (May, Thackray & Austin JJ) revisited the issue in Slater & Light [2011] FamCAFC 1, and held at 45:
“The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3) (see Aldridge & Keaton (2009) FLC 93-421 at [74]; Mulvany & Lane (2009) FLC 93-404 at [84]; Champness & Hanson (2009) FLC 93-407 at [101-103]; Marsden & Winch (No. 3) [2007] FamCA 1364 at [76-78]).”
Ultimately, the weight attached to each factor as set out at s.60CC is a matter of discretion.
Pursuant to S.60CG when determining appropriate orders, the court must to the extent possible and consistent with a child’s best interests ensure the orders are consistent with any family violence order and did not expose a person to unacceptable risk of family violence.
If the court is satisfied the parents are to have equal shared parental responsibility, and there is agreement in this matter that both parents will by way of consent, the court must pursuant to S.65DAA (1)(a) and S.65DAA(2)(c) consider whether it is in the best interest of the child spending equal, or, substantial and significant time with his or her parents. Pursuant to S.65DAA(5) the court must consider the practicability, of the child spending equal, or, substantial and significant time with his or her parents.
In Goode & Goode [2006] FamCA 1346 Bryant CJ, Finn and Boland JJ considered the meaning to be attributed by the court to the term “consider” and reviewed the decision of O’Loughlin J at first instance in Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 and at 369 which stated:
“The verb “consider” is a common word used daily in language and in documents; yet no counsel was able to refer to any judicial determination of its meaning. The Macquarie Dictionary and the Shorter Oxford English Dictionary ascribe to it a variety of shades of meaning giving, respectively, as their first definitions “to contemplate mentally; meditate or reflect on” and “to view attentively, to survey, examine, inspect”. American and Canadian dictionaries give similar general descriptions: “advert to, analyse, appraise, assess, etc” (Legal Thesaurus 2nd ed: William C Burton) and “to examine, inspect; to turn one’s mind to” (The Dictionary of Canadian Law: Duke Low & Niese).”
Discussing meaning attributed to the term by O’Loughlin J, Bryant CJ, Finn and Boland JJ at paragraph 62 held:
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
The practical meaning of equal time in my view is well understood and thus requires no explanation. If equal time is not ordered, significant and substantial time must be considered.
The practical meaning of significant and substantial time is a legislative one and is defined at section 65DAA subparagraph (3) and (4). Subparagraph (3) of section 65DAA that provides:
A child will be taken to spend significant and substantial time with a parent only if:
(a) the time the child spends with the parent includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent that allows the parent to be involved in the child’s daily routine; and occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In Mazorski & Albright 37 FamLR 518 at 525 - 526 Brown J considered the courts position when determining whether the court should award equal time or substantial and significant when applying the provisions of Section 65DAA examining the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) that states:
“196 Sub-section 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.”
In pre 1 July 2006 amendments case of T & N [2001] FMCAfam 222 Ryan J then sitting as a Federal Magistrate reviewed and provided a substantial commentary on the approaches taken by the courts both in Australia and internationally to the question of what factors needed to be present or for that matter not present for the court to be confident in awarding an equal time arrangement in a parenting dispute. Summing up those factors Ryan J at 93 stated:
“The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.”
Pursuant to Section 65DAA(5)(e) the court is able to consider such other matters as the court considers relevant when determining whether it is reasonably practicable for a child to spend equal or substantial and significant time. I note that section 65DAA(5)(c) touches on the parents relationship. In my view communication is only one element in the parent’s relationship that if good promotes equal or substantial and significant time as being practicable. I propose what I shall term as “the three C’s” as being a desirable feature of the parties parenting relationship. The “three C’s” are that of good communication, co-operation and compromise in the parties parenting relationship.
Where the court finds that the two concepts of equal time or substantial and significant time are unable to provide an outcome that promotes a child’s best interests or is reasonably practicable a child or children’s living and spending time arrangements are to be determined in accordance with the child’s best interests see the case of Goode & Goode (2006) FLC 93-286. The effect of Section 60CA provides that the court must regard the best interest of the child as the paramount consideration as determined by a consideration of the factors at Section 60CC. The court shall determine the weight to be given to the various factors at Section 60CC, be they primary or additional considerations or considerations arising from a particular issue in a case, but not specifically referred to in the Act.
The order in which the court follows the legislative framework at Section 60CC, 61DA and 65DAA has been considered by the court.
In Goode & Goode the Full Court at 82 considered the order in which the legislative pathway was to be followed in interim decisions stating:
i)In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The legislative pathway to be followed when determining matters on final basis was considered by the Full Court of the Family Court in Starr & Duggan [2009] FamCAFC 115, in which Boland, Thackray and Watts JJ stated at paragraph 38:
“However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.”
Consideration of Section 60CC
I propose to first deal with those considerations as set at Section 60CC (3).
Section 60CC (3)(a). I note that both X and Y have expressed views in this matter. X has expressed a view that he desires to live in a shared parenting arrangement. I am however cautioned against accepting X’s views by the Family Consultant in the matter Mr C who unlike me has had the benefit of actually meeting with and speaking to the children. I note that X is highly confident the applicant mother will remain free of alcohol. I accept the Family Consultants warning and therefore am not persuaded that X’s views should hold significant weight in circumstances where X is, based on the family consultant’s opinion, possibly avoiding disappointing one parent over the other while mindful of his desire that his mother does not return to return to alcohol abuse.
Y expressed a clear desire to live with her father and spend substantial and significant time with her mother. At age 9 Y could also experience the desire not to upset either parent by not choosing between them. Like her brother, Y holds a desire that her mother not return to alcohol abuse. Given Y’s age, maturity and probably level of understanding I give her view’s some but little weight. What is clear however is that both children have expressed a view that they would like to live with the father be it equally or predominantly.
60CC(b) This is not a matter where the children are estranged from either parent and I accept that both children enjoy a strong bond with both parents. I am concerned that the nature of the children’s relationship with both parents could significantly change if the children’s confidence in the mother is broken by her return to alcohol abuse. I am satisfied that the children enjoy a good relationship with their maternal grandparents with whom the mother is currently residing.
60CC(3)(c). The parties have following the events of 14 February 2012 fallen into a period of significant dispute and discourse. Both parties have set out in their affidavit material their willingness to facilitate and encourage a close and continuing relationship between the children and the other parent. It is my view the parties’ ability to facilitate and encourage a close and continuing relationship between the children and the other parent has been some what curtailed by the break down of the parties’ communication in February 2012 where the parties have taken positions against one another as litigants rather than treating one another as parents. I expect having reviewed and considered the evidence in the matter that the parties’ ability to facilitate and encourage a close and continuing relationship between the children and the other parent will increase with time, of course only time will tell.
60CC(3)(d) While I am conscious that the children lived in an equal time arrangement with both parents it is clear that this was not an arrangement of long standing. At longest such arrangement lasted 4- 6 weeks. On either proposal of the parties, the children with not suffer a significant separation from either parent or for that matter any other person. I am not however persuaded by the views of the children to allow X to live in an equal time arrangement and Y to live with the father thus separating the two siblings. It is my view such a result could have negative consequence for the children and in particular Y who according to the Family Consultant “volunteered her strong relationship with her brother”.
60CC(3)(e) I do not consider that there is any practical difficulty or expense of the children spending time with or communicating with the parents.
60CC(3)(f) I am concerned about the capacity of the applicant mother who has a significant history of disturbances in her life such as attempted suicide, depression, anxiety and abuse of alcohol. I note that the mother last consumed alcohol to excess on 11 January 2012. It is clear when reading copies of the applicant mother’s medical notes that the applicant mother attempted to end her abuse of alcohol in 2011 but that such attempts where not successful until possibly 26 January 2012 when the applicant mother on her evidence last had an alcoholic drink. Having read the notes of the medical practitioners tendered into evidence I hold concerns that the mother is an alcoholic as is suggested by the respondent father. I however decline to make a specific finding about whether the applicant mother is or is not at this time. I do have however limited confidence that the mother will continue to abstain from alcohol as opposed to the high confidence enjoyed by the children. I am therefore of the view that for the moment the applicant mother’s capacity is impaired. It is hoped that the mother’s capacity will improve and that she will reward the children’s confidence in her by abstaining from alcohol long term.
Having read the report and letter of Ms M hold no concerns about the capacity of the father or any concerns about the capacity of the maternal grandparents with who the applicant mother currently resides. I note that applicant mother proposes an equal time regime and that Counsel for the mother stated to the court during his submissions that the mother does not make a submission that the children are at risk of harm from the father.
60CC(3)(g)–(h) I do not consider these as relevant to the determination of the issues before the court.
60CC(3)(i) I consider that currently both parents are demonstrating a good attitude towards the children and towards the responsibilities of parenthood. This strength of this attitude is however conditional on the applicant mother complying with her doctors prescription of antidepressant and mood stabilising medication and remaining free of alcohol. What is not good however is the state of the parties’ communication. If the parties fail in the future to make a concerted effort to improve their communication it may be that at a final hearing I make a finding that the parties do not have a good attitude towards parenthood.
60CC(3)(j) I am concerned by the involvement of the police in the lives of the parties. The parties have for the past few months done little to slow down the discord between them. While it is difficult to make any findings in an interim determination where evidence before the court has not been tested it is my view that the respondent father has probably acted in a reactionary way displaying some aggression noting the comments of the police about the respondent father’s attitude set out in the Application for the Apprehended Domestic Violence Order, being heard in (omitted) Local Court.
60CC(k) I note that there is an interim order in place for the protect of the applicant mother from the respondent father. Such order does little in my mind other than to demonstrate the apparent lack good communication between the parties and in effect weaken the applicant mother argument for an equal time arrangement.
60CC(l) In circumstances where I am asked to make an interim order I do not propose to consider this factor as it is likely further proceedings will be instituted in the form of a final hearing.
60CC(m) I do not propose consider any other fact or circumstance.
I deal with Section 60CC (4) having regard to in particular, to events that have happened, and the circumstances that have existed since the separation occurred.
60CC(4) (a) (i)(ii). I am of the view that there can be no criticism that either party has failed to fulfil his or her responsibilities as a parent with regard to participating in making decisions about long term issues in relation to the children at this present moment in circumstances where the applicant mother is compliant with her medication and free of alcohol. Historically this has not been the case for the mother most notably her writing of notes to the children and then serious attempt at suicide. Had the applicant mother been successful in her attempt she would have been unable to participate in making decisions about long term issues in relation to the children due to her complete absence from their lives as a parent occasioned by her death.
60CC(4)(b)(i) – (iii) It is difficult to make any finding on an interim basis about whether either parent has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the children. There is however strong argument in this matter that the applicant mother has failed to facilitate the father spending time with or communicating with the children. I suspect however that this is more likely a product of the very recent disintegration of the parties’ relationship and note that it is both parties’ positions that they desire that the children spend either equal time or substantial and significant time with the other parent. Given the difficulties making a finding about these considerations on an interim basis I form the view these considerations are unhelpful in assisting me to determining the current applications before the court.
60CC(4)(c) There is in my view insufficient information before the court to make any finding regarding this consideration.
I now turn to the primary considerations at Section 60CC (2) (a) and (b).
S.60CC(2)(a). It is clear in my mind on the reading of the Family Consultant’s Report that both children love the applicant mother and the respondent father. The children will based on the current circumstance where the mother is compliant with her medication and free of alcohol abuse benefit from having a meaning relationship with both parents. However the same could not be said about the benefit of the children having a meaningful relationship with a mother who suffers from anxiety, depression, perhaps Bi Polar traits or is an alcoholic. It is therefore incumbent on the applicant mother in the proceedings to ensure she complies with her medication and reward the children’s high confidence in her by remaining free of alcohol abuse.
S.60CC(2)(b). I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence. The applicant mothers struggles with anxiety, depression and perhaps Bi Polar disorder are well document within the mother’s medical notes tendered in the course of the hearing together with other evidence such as the 3 suicide notes written by her at the time she made a serious attempt at suicide in 2010. The mother struggle to remain free from alcohol abuse is also well documented. This struggle has during 2011 been won and lost. What is clear from the evidence is that there has not been a significant passage of time that has passed since the mother last consumed alcohol to excess that allows me to make a finding that the applicant mother will not again abuse alcohol.
I remain concerned about the mother‘s mental state given her history of anxiety depression and the question over whether she might be suffering from Bi Polar. Most importantly I am concerned that the children will not be protected from physical or psychological harm or from being subjected to, or exposed to abuse neglect or possible family violence if they spend time with the applicant mother in circumstances where, she is no longer under the watchful eye of her parents having found her own accommodation away from her parents home noting that it was suggested by the applicant mother’s counsel during the course of the hearing that the applicant mother was in the process of finding such accommodation. Given such concerns I find that in order to ensure that the children are protected from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence it is necessary that any time the children spend with the applicant mother is to take place at the applicant mother’s parents’ home. I am satisfied having read and considered the affidavit of the maternal grandfather, Mr M that he would act protectively of his grandchildren in circumstances where the applicant mother recommenced abusing alcohol. I find that the children will not need to be protected from physical and psychological harm or from being subject to, or exposed to abuse neglect or possible family violence if they are to live with the respondent father.
Consideration of Section 65DAA.
I note that both parties seek orders for equal shared parental responsibility. In such circumstances I must consider the provisions of section 65DAA.
I consider the issue of whether equal time is in the best interest of the children and find that while it could be in the best interest of the children where the children’s time with the mother was spent at her parents’ home I am not able to find that it is practicable when considering the provisions of section 65DAA(5).
I consider that the parties reside within a sufficient proximity that it would be practicable for the children to live with the parents in an equal time arrangement as set out in section 65DAA(5)(a) and I am satisfied that the parties have a current and future capacity to implement an arrangement for the children spending equal time with the parents as set out in section 65DAA(5)(b). When considering the provisions of section 65DAA(5)(c) I am concerned by the considerable conflict between the parties as set out in their respective affidavits, and by what I have termed poor communication that commenced on 13 or 14 February 2012 culminating in the application by the police for an Apprehended Domestic Violence Order against the respondent father and the parties’ seemingly inability to come to ongoing arrangements allowing the children to spend time with the respondent father following 14 February 2012. Given the above shortfalls I find that the parties do not have a current or future capacity to communicate with each other or an ability to resolve difficulties that might arise when implementing an equal time arrangement. While it might be ironic that the Apprehended Domestic Violence orders sought by the applicant mother have worked against this court acceding to the orders sought by her I remain of the view that the contested application for the Apprehended Domestic Violence order is proof of the parties’ inability to communicate and resolve difficulties.
In the circumstances where the parties are unable to communicate and will face one another in a contested hearing of the Apprehended Domestic Violence order application it is my view the impact on the children attempting to move between two households in effect having two homes could be severe. There is a poor level of communication, co-operation and compromise in the parties’ relationship. Based on the above I cannot accept the orders sought by the applicant mother as being practicable and must reject the orders sought by the applicant mother.
The respondent father seeks orders that the children live with him. In addition the respondent father seeks orders that the children spend time with the applicant mother. When considering the provisions of section 65DAA(3) the respondent father’s proposal is one that can be defined as meeting the definition of substantial and significant time.
It is my view that a substantial and significant time arrangement for the children to spend time with the applicant mother is in the best interest of the children but again in circumstances where such time takes place while she is living with her parents. I turn to the issue of practicality. I note that the parties reside within a sufficient proximity that it would be practicable for the children to live with the father and spend substantial and significant time with the applicant mother. Similarly I am satisfied that the parties have a current and future capacity to implement an arrangement for the children spending substantial and significant time with the applicant mother.
The parties’ current or future capacity to communicate with each other or an inability to resolve difficulties that might arise when implementing the applicant mother spending substantial and significant time remains somewhat wanting but is in my view is sufficient. I form the view that the impact of the children living with the father and spending substantial and significant time with the applicant mother should be a positive one where the positive level of communication, co-operation and compromise needed between the parties in order to successfully implement a substantial and significant time regime will be far less than that required by the parties attempting an equal time arrangement.
Conclusion
When making the proposed orders in this matter I have considered whether they will conflict with the terms of the interim Apprehended Domestic Violence order in place against the respondent father and consider that the orders of this court will not conflict with orders made by the (omitted) Local Court.
Having read and considered the evidence, heard and considered the submissions made by the parties’ legal representatives, read and considered the documents tendered into evidence and then considered the legislative framework, I find the best interests of the children are promoted by allowing the children to live with the respondent father and spend substantial and significant time with the mother in a protective environment living at the maternal grandparents home.
It should be noted that the orders are made on an interim basis only and that should the parties’ communication, capacity to communicate with each other and ability to resolve difficulties that might arise between the parties improve and the applicant mother remains compliant with her medication and free of alcohol abuse then it may be appropriate to change the order at a final hearing and move closer if not in line with the applicant mother’s proposal. Of course as stated earlier only time will tell.
I make the following orders.
This is the final paragraph of this judgment.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Myers FM
Date: 17 May 2012
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