Godfrey and Bradley - [2015] FCCA 2597

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODFREY & BRADLEY

[2015] FCCA 2597

Catchwords:
FAMILY LAW – Final parenting arrangements for child aged ten years – child independently represented – high conflict – allegations of family violence and alcohol abuse – nature of family violence – coercive and controlling behaviour – allegations of sexual abuse – assessment of risk of sexual abuse – is risk unacceptable – what is proportionate response to degree of risk arising – best interests – meaningful relationship – presumption of equal shared responsibility.

Legislation:

Family Law Act 1975, ss.4(1); 4AB; 60B; 60CA; 60CC; 61DA; 64B; 65C; 65D, 65DAA 65DAC; 65DAE; 68LA(2)

Evidence Act 1995 (Cth), s.140

Intervention Orders (Prevention of Abuse) Act 2009 (SA); s.23(3)

Godfrey v Police [2015] SASC 101
Godfrey & Bradley [2014] FCCA 1041
Fox v Percy (2003) 214 CLR 118
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
Bartel & Schmucker (No 3) [2012] FamCA 1094
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
M & M (1988) FLC 91-979
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
JG & BG (1994) 18 Fam LR 255
In The Marriageof Patsalou (1994) 18 Fam LR 426
Godfrey v Police (No3) [2013] SASC 93
Godfrey v Police (No4) [2014] SASC 41
Blanch v Blanch & Crawford (1999) FLC 92-837
T & N (2003) FLC 93-172
Bright v Bright (1995) FLC 92-570
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Applicant:

MR GODFREY

Respondent:

MS BRADLEY

File Number:

ADC 1020 of 2014

Judgment of:

Judge Brown

Hearing dates:

15, 16 & 17 April, 21 & 22 July, 27 August 2015

Date of Last Submission:

22 August 2015

Delivered at:

Adelaide

Delivered on:

24 September 2015

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr Boehm

Solicitors for the Respondents:

White Berman

Counsel for the Independent Children's Lawyer:

Ms Tinning

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

All previous parenting orders be and are hereby discharged.
The mother do have sole parental responsibility for the child X born (omitted) 2005 ("X").
The mother shall advise the father in writing of any arrangements she makes regarding the long term welfare of X.
X do live with the mother.
X do spend time with the father as follows and on the following terms:
(a)from after school (or 3:15pm) on Friday (so that the existing regime of weekend time continues) until the following Monday at the commencement of the school day (or 8:45am) and at the same times and on the same days in each alternate week thereafter PROVIDED THAT in the event that the Monday at the conclusion of any period of such time is a public holiday such time shall be extended until…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2597
Decision Date: 24 September 2015

CaseChat Overview and Summary

This matter concerned parenting orders for a child named X, born in 2005. The parties involved were the child's mother, Ms Bradley, and the child's father, Mr Godfrey. The dispute centred on the arrangements for X's care, time spent with each parent, and communication between the parents, particularly in light of their acrimonious relationship and existing family violence orders. The decision was made by Judge Brown.

The court was required to determine the most appropriate parenting arrangements for X, considering the factors outlined in relevant legislation, including the child's best interests, the parents' attitudes towards their responsibilities, any history of family violence, and the likely effect of any changes on the child. Specifically, the court had to assess the capacity of each parent to foster a positive relationship between X and the other parent, the impact of Mr Godfrey's animosity towards Ms Bradley on his parenting, and Ms Bradley's capacity to manage her parenting responsibilities. The court also had to consider the financial contributions of each parent and the child's need for stability.

Judge Brown reasoned that while both parents aspired to be good parents, their deeply troubled relationship and differing parenting values made agreement on X's care extremely difficult. The court found that Ms Bradley had a better level of insight into responsible parenting and was more likely to support X's relationship with his father than Mr Godfrey, whose fixation on perceived past injustices and animosity towards Ms Bradley impeded his capacity to parent effectively. The court noted Mr Godfrey's continued disregard for family violence orders and his recent breach. Ms Bradley was found to have reappraised her parenting responsibilities and was not currently experiencing a drinking problem. The court also considered that X was not emotionally robust and would not cope well with significant changes to his circumstances.

The court ordered that all previous parenting orders be discharged. Ms Bradley was granted sole parental responsibility for X, with X to live with her. Specific, detailed arrangements were made for X to spend time with Mr Godfrey, including provisions for weekends, school holidays, Christmas, birthdays, and Easter. The orders also included injunctions restraining both parents from denigrating each other in front of X or discussing the proceedings within X's hearing. Further orders mandated written communication regarding X's needs via a communications book, restricted Mr Godfrey's communication with Ms Bradley except in emergencies, and imposed restrictions on excessive alcohol consumption by either parent when X was in their care. Ms Bradley was also restrained from permitting X to be in the sole care of her maternal grandfather.

Orders

Orders of the court

All previous parenting orders be and are hereby discharged.

The mother do have sole parental responsibility for the child X born (omitted) 2005 ("X").

The mother shall advise the father in writing of any arrangements she makes regarding the long term welfare of X.

X do live with the mother.

X do spend time with the father as follows and on the following terms:

(a) from after school (or 3:15pm) on Friday (so that the existing regime of weekend time continues) until the following Monday at the commencement of the school day (or 8:45am) and at the same times and on the same days in each alternate week thereafter PROVIDED THAT in the event that the Monday at the conclusion of any period of such time is a public holiday such time shall be extended until Tuesday at 8:45am (before school);

(b) that the said time in paragraph 5(a) continue throughout any period of school holidays;

(c) irrespective of the times set out in paragraph 5(a) hereof arrangements for Christmas Day each year shall be as follows:

(i) X shall spend time with the father from 3:00pm 24th December 2015 to 3:00pm 25th December 2015 and from 3:00pm 25th December 2016 to 3:00pm 26th December 2016 and at the same times and on the same days in each alternate year thereafter; and

(ii) X shall spend time with the mother from 3:00pm 25th December 2015 to 3:00pm 26th December 2015 and 3:00pm 24th December 2016 to 3:00pm 25th December 2016 and at the same times on the same days in each alternate year thereafter;

(d) in the event that the mother's birthday falls on a day when X is in the care of the father, the father's time with X shall be suspended and X shall be returned to the mother's care between 3:00pm and 7:00pm on that day;

(e) in the event that the father's birthday falls on a day when X is in the care of the mother, X shall spend time with the father between 3:00pm and 7:00pm on that day;

(f) in the event that Father's Day shall occur on a weekend when X is in the care of the mother, the father shall spend time with X between 9:00am and 5:00pm on that day;

(g) in the event that Mother's Day falls on a day when X is spending time with the father, the father's time shall be suspended and X shall be returned to the care of the mother between 9:00am and 5:00pm on that day;

(h) for the Easter long weekend in each year the following arrangements shall apply, namely,

(i) X shall spend time with the mother from the conclusion of school on Easter Thursday to 3:15pm on Easter Monday 2016 and at the same times and on the same days in each alternate year thereafter;

(ii) X shall spend time with the father from the conclusion of school on Easter Thursday to 3:15pm on Easter Monday 2017 and at the same times on the same days in each alternate year thereafter;

(iii) these arrangements for the Easter weekend in each year shall override arrangements for mid-term alternate weekend arrangements as specified in paragraphs 5(a) hereof;

(i) such further and other times as the parties may agree and in the absence of agreement as shall be determined by this Honourable Court.

Handovers shall occur as follows:

(a) during school terms and during school hours handovers shall occur at X's school;

(b) at all other times handovers shall occur at (omitted) located at (omitted) or such other place as the parties shall mutually agree in writing by text message.

The parties be restrained and an injunction is hereby granted to restrain them and each of them from:

(a) denigrating or discussing the other party in derogatory terms with the said child X or with any third party in the earshot of X;

(b) discussing the within proceedings with X or with any third party in the earshot of the said child X;

(c) discussing the friends or extended family of the other party in derogatory terms with the said child X or with any third party in the earshot of X.

The parties shall communicate all necessary information relating to the day to day needs of the child including medical needs, in writing, via a communications book to be exchanged between them at each handover of the child.

That the father be restrained and an injunction hereby be granted restraining the father from communicating with the mother by phone, SMS, email or any other means other than via the communications book except in the case of a medical emergency involving the child whereby the party with care of X is to notify the other party of the medical emergency by telephone as soon as is reasonably practicable.

10.

The parties both be at liberty to attend at X's school events (such as but not limited to concerts and sports days) noting that the injunction contained in paragraph 7 applies notwithstanding this paragraph.

11.

Without admission, the mother be restrained and injunction hereby be granted restraining the mother from permitting X from being in the sole care of the maternal grandfather Mr C.

12.

Without admission by either party as to the need for same, the parties be restrained and an injunction hereby be granted restraining the parties from consuming alcohol to excess at any time that the child is in his or her care or for a period of 24 hours prior to that time.

13.

Liberty to apply as to consequential orders.

Background

Background to the litigation

In general terms, I accept that both parties are interested in ensuring that X does as well as possible at school. However, given the manner in which the case was conducted, this is not a strong determinative factor in the matter. g) The child’s maturity, sex, lifestyle and backgroundh) Aboriginality These are not relevant considerations in this case.i)The attitude that each parent has demonstrated to the responsibilities of being a parent I accept that both Mr Godfrey and Ms Bradley aspire to being the best possible parents for X. However, during their relationship, they did not live up to this aspiration. This was because of the perennially troubled relationship between them. Since exiting her relationship with Mr Godfrey, I accept that Ms Bradley has reappraised her parenting responsibilities, so far as X is concerned. I find that she does not currently have a drinking problem. Rather, I accept that, with the assistance of counselling, she has been able to put her life in order, which has been beneficial to X. Mr Godfrey remains fixated on getting even with Ms Bradley because of his perception that he was wrongly the subject of a family violence order, which she instigated, leading to his unjust and unwarranted detention. His animus in respect of this issue, in my view, impedes upon Mr Godfrey’s capacity to parent X effectively. I agree with Ms Tinning’s assessment that Mr Godfrey is fixated with the issue. Mr Godfrey bristles with ill feeling for Ms Bradley, although he asserts otherwise. His view of her is negative, as revealed when his demeanour slipped in court and he referred to her as a mangy dog on heat. In these circumstances, I have great reservations that Mr Godfrey will not be able to protect X from his (Mr Godfrey’s) abiding antipathy for his (X’s) mother. The evidence of Ms A is that X is already stressed by his wish to protect his mother and have a better relationship with his father. It is part of the responsibility of being a good parent to encourage and support a child to have the best possible relationship with the other parent concerned. Both parties, in this case, can do better in this regard. As previously noted, it was inappropriate that Ms Bradley did not enable Mr Godfrey to speak to X, on his birthday. However, of the two parties concerned, I am satisfied that it is Ms Bradley who has the better level of insight into what it is to be a responsible parent and so is more likely to support X’s relationship with his father than vice versa. j) Family violencek) Any family violence order I do not propose to repeat my findings regarding family violence issues in this case. There continues to be a family violence order applicable to Mr Godfrey. As recently as 18 December 2014, Mr Godfrey was found to have breached this order, with his subsequent appeal being dismissed. In my view, there is sufficient evidence available to me to indicate that Mr Godfrey has scant regard for such orders. Ms Bradley is entitled to the production ensuing from the family violence order made in her favour. The order envisages that Mr Godfrey will be restrained from contacting or communicating with her, in any way whatsoever, apart from in relation to specific issues to do with X.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons provided above, it seems to me that it is likely to be helpful to X if he attends family occasions, such as the celebration of Christmas and the like, so he is aware of where he fits in within the broader structure of his family.c) The extent to which each of the child’s parents have taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child Both parents have a deep interest in everything to do with X. There is no suggestion that either Mr Godfrey or Ms Bradley have ever failed to take up an opportunity to spend time with X. In this context, I accept that financial necessity dictate that Ms Bradley continue in the workforce. I reject any suggestion, implied or otherwise, that she has prioritised her career over the needs of X. The particular difficulty of this case is that the parents’ past history; their different parenting values and disparate personalities; and their struggle for advantage over each other; renders it extremely difficult for them to agree about many things likely to be important for X’s care and development. Accordingly, Mr Godfrey and Ms Bradley are likely to share the generic aspiration that everything be done to ensure that X has a happy and secure childhood, which prepares him for a fulfilling adulthood, but they are likely to fundamentally disagree about the means through which this is to be achieved. There is no easy answer to this dilemma. The parties are not disinterested parents. They are each likely to be interested in every decision which is likely to arise in respect of X, but when any such issue arises, they will disagree about how it is to be resolved.ca)Provision of financial support for X I am satisfied that it is Ms Bradley who provides the bulk of financial support for X. Mr Godfrey has been somewhat cagey about his financial situation. However, at present, he is not in the paid workforce and it is uncertain when, if at all, he will return to paid employment. Mr Godfrey portrays himself as being something of a self-employed entrepreneur, particularly in respect of his invention and manufacture of (omitted). For her part, Ms Bradley is critical that, during the parties’ relationship, these activities left her in debt and with the responsibility of supporting X financially. This state of affairs remains a bone of contention for her. I can understand why this would be so. It seems to me to be improbable that Mr Godfrey will make any significant contribution, in respect of X, for the foreseeable future, particularly given his deep and abiding antipathy for Ms Bradley.d)The likely effect on the child of any changes in his circumstances Mr Godfrey proposes a significant level of change in the parenting arrangements for X. In my view, the evidence is unequivocal that X is unlikely to cope well with such change. I accept Ms A’s view that X is not emotionally robust and, as such, he should not be exposed to any necessary degree of change in arrangements for his care, unless there is a compelling reason to do so.

Ratio Decidendi

Legal Principle Established

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