Hadfield and Viner
[2013] FMCAfam 55
•30 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADFIELD & VINER | [2013] FMCAfam 55 |
| FAMILY LAW – Children – parenting orders – interim orders – application to vary or suspend earlier consent orders – parental responsibility – equal shared parental responsibility – child aged 7 years living with mother – allegation of alcohol abuse – whether evidence sufficient to justify an order for a blood test – acrimony between parties. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Rice v Asplund (1979) 90-725 |
| Applicant: | MR HADFIELD |
| Respondent: | MS VINER |
| File Number: | SYC 6524 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 October 2012 |
| Date of Last Submission: | 8 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Manning |
| Solicitors for the Applicant: | Aitken Lawyers |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | CLS Legal |
| Independent Children’s Lawyer: | Ms Hall |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
The Orders made by consent on 19 August 2008 are suspended.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2005.
The child [X] born [in] 2005 is to live with the Mother.
The child [X] is to spend time with the Father as follows:
(a)During the school term, each alternate weekend commencing at 5:30am on the Friday and concluding at 5:00pm on the Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then the time will be extended to 5:00pm on the Monday;
(b)For the first half of each of the short school holiday periods commencing at 9:00am on the first Saturday of the school holiday period and concluding at 5:00pm on the middle Saturday;
(c)From 9:00am on Boxing Day 26 December 2013 until 5:00pm on Friday 10 January 2014;
(d)From 9:00am until 5:00pm on Father’s Day if that day should fall on a Sunday when the child would not otherwise be spending time with the Father according to these Orders;
(e)From 2:00pm to 7:00pm on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father according to these Orders; and
(f)Such other times as the parties may agree in writing.
Notwithstanding the provisions of Order (4)(a) above, the child [X] will spend time with the Mother from 5:00pm on the Saturday before Mother’s Day until 5:00pm on Mother’s Day.
The Father is restrained from consuming any alcohol at any time during the time that [X] is to spend time with him or for twelve (12) hours beforehand.
All changeovers for the purpose of these Orders are to take place at the McDonalds Family Restaurant [address omitted] and for this purpose:
(a)Changeovers are to be conducted by the parties personally except in the case of injury or illness; and
(b)The Mother is to ensure that Mr E plays no part in any changeover.
The child is to have electronic communication with the father:
(a)Every Tuesday and Thursday evening between 7:00 and 7:30pm;
(b)On the Father’s birthday between 7:00 and 7:30pm; and
(c)On Christmas Day between 8:00 and 8:30am.
For the purposes of the above Order:
(a)The child is to communicate with the Father by Skype webcam if available, with the Father to initiate the call and the Mother to ensure that the child is available to receive the call in private; and
(b)The child is to communicate with the Father by telephone with the Father to telephone the child on the Mother’s mobile telephone number and the Mother is to ensure that her telephone is switched on and answered during this period and that the child is available to receive the call in private.
The parties are restrained by injunction from removing the child from her current school or attempting to enrol her in any other school than the school she is currently attending.
The parties must advise each other as soon as is reasonably possible of any illness or injury sustained by the child whilst in their care necessitating treatment at a hospital or by a medical practitioner.
The parties must inform each other of any change to their residential address, landline telephone number or mobile telephone number within 48 hours of such change occurring.
The Mother is to authorise the Principal of the school attended by the child to provide to the father at his expense copies of all school reports, newsletters, bulletins, invitations to attend parent-teacher interviews, information about school photographs and all other documents usually provided to parents of children attending the school.
The parties are restrained from abusing, criticising or denigrating each other in the presence or hearing of the child or from permitting any third persons to do so.
The parties are restrained from discussing these proceedings with the child or from showing any court documents to the child.
IT IS NOTED that publication of this judgment under the pseudonym Hadfield & Viner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6524 of 2007
| MR HADFIELD |
Applicant
And
| MS VINER |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders relating to the parties’ daughter [X], who is seven years old. [X] was born [in] 2005. She lives with her mother, the first Respondent.
The Application is brought by her father. In his Application in a Case, filed on 3rd September 2012, he seeks to vary the Orders made by consent in the Family Court on 19th August 2008.
The Consent Orders of 19th August 2008 provided, in summary, that:
a)[X] would live primarily with her mother;
b)The Mother and Father would have equal shared parental responsibility for her;
c)The Father would spend gradually increasing amounts of time with [X] and, relevantly to this application, from the time that she attained the age of 5:
i)From 9:00am on Saturday until 3:00pm on Sunday;
ii)From 3:00pm or after school until 6:00pm on the child’s birthday;
iii)For three days in the Easter school holidays;
iv)For three days in the October school holidays; and
v)For one week during the Christmas school holidays, to include Christmas Day every second year.
The father commenced proceedings for final orders on 20th April 2012. He also filed an Application that the Mother should be dealt with for contravention of those orders.
The Applications were returnable on 18th June 2012, on which date:
a)The parties were directed to attend a Child Dispute Conference with a Family Consultant; and
b)An order was made appointing an Independent Children’s Lawyer to represent the interests of the child [X].
The parties attended the Child Dispute Conference on 18th June and agreed that:
·[X] would spend time with her father for a week during the school holidays in July
·They would not talk to [X] about details of the Court proceedings
·They would not denigrate each other to [X]
·Changeovers would continue to take place at McDonalds at [omitted].
The parties agreed to attend a Child Inclusive Child Dispute Conference with the child on 26th June 2012.
The parties attended the Conference and confirmed their earlier agreements:
·[X] would spend a week with the Father during the upcoming school holidays
·Changeovers would be at 9:00am and 5:00pm at McDonalds [omitted].
The Family Consultant noted in her memorandum to the Court that [X] presented as a bright child who was advanced in her language and play. She said she enjoyed her new school and liked living in [omitted]. She appeared to be sensitive to the acrimony between her parents and felt embarrassed when her parents were in the same vicinity as each other.
The Family Consultant commented on the parents’ mutual lack of trust and suspicion.
The Family Consultant’s impressions were that:
·The parents were unable to come to further agreement about parenting arrangements even though it appeared that [X] would benefit from feeling less hostility between her parents
·Neither party had any confidence that they would be able to communicate with each other or make further agreements due to past conflict and communication breakdown
·The child is demonstrating that she is under stress from the parental conflict
·The Father appeared despairing of the limited amount of time that he spends with the child
·The Mother appeared anxious about the effect on the child of the holiday period with her father and whether he would make negative comments to the child about her.
On 8th October 2012 an order was made that Dr L, Child and Family Psychologist, would be appointed as Court Expert to enquire into and report to the Court on matters relating to the welfare of the child.
Orders Sought by the Applicant
The Father, in his Application in a Case, seeks orders that:
a)[X] will spend time with him from 9:00am to 5:00pm on her birthday;
b)When [X] is not spending time with him, she is to attend [activity omitted] and the father is to collect the child from [omitted] McDonalds on the alternate Sunday at 7:30am and return her to [omitted] McDonalds at 12 noon that same day (the Court was informed that this order was not pressed);
c)[X] would spend the first half of the short school holidays with him;
d)[X] would spend half of the Christmas school days with him;
e)[X] would spend alternate public holidays with him;
f)The Father would communicate with [X] by telephone every Tuesday and Thursday;
g)That changeover would take place at [omitted] National Park.
The Father also originally sought an order that [X] was to be enrolled in a mainstream federally recognised public school. However, the Court was told on the day of the hearing that the father did not press that order.
The Independent Children’s Lawyer handed up a Minute of Proposed Orders suggesting that the previous parenting orders should be suspended and that:
a)[X] would live with her mother;
b)The child should spend time with her father:
i)On alternate weekends from 9:00am Saturday until 5:00pm on Sunday;
ii)For the first half of each short school holiday period;
iii)For half of the long Christmas holiday period in a week about arrangement;
iv)From 10:00am on New Year’s Eve to 10:00am on New Year’s Day;
v)From 2:00pm to 7:00pm on her birthday in 2013;
vi)If the weekend on which the child is to spend time with the Father includes a public holiday then the child’s time will be extended to include the public holiday;
vii)On other public holidays; and
viii)Such further time as the parties may agree.
c)Changeovers would take place at McDonalds [omitted] and the Mother must ensure that a Mr E does not personally facilitate any changeovers;
d)The child would have electronic communication with her father on Tuesday and Thursday evenings;
e)The child should continue to be enrolled at and attend [omitted] School at [omitted];
f)The parents should keep each other advised about medical issues relating to the child;
g)The Mother should request the child’s school to provide the Father with copies of school reports and other relevant documents;
h)The parties must each attend a Post Separation Parenting Course;
i)The parties should refrain from making critical or derogatory remarks about each other in the presence or hearing of the child and do all things necessary to ensure that no other person does;
j)The parties should refrain from discussing these proceedings with the child and do all things necessary to ensure that no one else does;
k)The Father should attend on his general practitioner for a pathology referral for a CDT blood test (HPLC method) and provide the result to the Independent Children’s Lawyer; and
l)In relation to the Father’s test results, the Independent Children’s Lawyer is to have liberty to restore the matter to the list on 7 days’ notice in respect of the test results.
The Mother, through her counsel, submitted a Minute of Proposed Orders that largely agreed with the orders proposed by the Independent Children’s Lawyer. The differences were:
a)The Mother disagreed with the proposal for the child’s time with the Father in the Christmas school holidays to be on a week about basis;
b)The Mother sought a different set of times for the child to spend time with her over Christmas;
c)The Mother proposed that the child should have electronic communication with her father on Mondays, Wednesdays and Fridays; and
d)She opposed an order requiring the parties to attend a Post Separation Parenting Course.
Evidence
The Father relied on the following:
a)His affidavit sworn 31st August 2012; and
b)The affidavit of his adult son, Mr H, sworn 24th August 2012.
The Father’s affidavit is very lengthy, amounting to some 178 paragraphs over 40 pages of text, together with some 46 separate annexures. The fact that the Court has directed that for interim hearings parties should rely on one affidavit of each witness, such affidavit not to exceed ten pages of text, has been treated with disdain by the father’s legal advisers. No effort was made at the interim hearing to indicate which of the 178 paragraphs were of particular importance.
The first 53 paragraphs of the affidavit cover the history of the parties’ relationship up to the making of the consent orders in August 2008.
The Father detailed in his affidavit his difficulties in arranging to spend time with [X] from 2009 onwards. He deposed, however, that from approximately November 2011 to early April 2012 he had spent time with the child on alternate weekends from 9:00am on Saturday until 5:00pm on Sunday, in accordance with the Consent Orders. He went on to describe difficulties he had had in contacting the child on her mobile telephone.
The Father deposed that on or about Saturday 31st March 2012, he attended at the changeover place at [omitted] Park to spend time with the child but neither the Mother nor the child appeared. On or about Sunday 1st April he received a text message from the mother saying:
“You have made exchanges too hard and your recent accusations are so shocking I need to get away to my family…[X] is with me and having a lovely holiday over easter. [X] has not mentioned your name. I will contact you on our return”.[1]
[1] Affidavit of Mr Hadfield 31.8.2012 at paragraph ]114]
He did not see the child again until he commenced proceedings in this Court.
At paragraphs [116] to [131] the Father set out details of the Mother’s twelve changes of residence between 2008 and 2012. At paragraphs [132] to [137] of his affidavit the father deposes that the child had attended three different schools in two years.
The Father referred in his affidavit to the Mother having formed a relationship with a Mr E. He described at paragraphs [151], [152] and [154] how Mr E behaved aggressively towards him attempted to prevent him from touching the child at changeover.
The Father has expressed concern about the Mother’s mental state at paragraphs [142], [144] to [146].
At paragraphs [165] to [168] the Father described proceedings in the [omitted] Local Court relating to an application for an Apprehended Domestic Violence Order on behalf of the Mother. After discussion and negotiations, the Mother agreed to withdraw the application.
The affidavit by the Father’s son Mr H describes how he and his brothers have a friendly relationship with [X]. He expressed frustration that the Mother did not encourage any contact between [X] and himself when the child is with her mother.[2]
[2] Affidavit of Mr H 24.8.2012 at [9]-[17], [19]-[20]
The Mother relied on her affidavit of 24th September 2012. This affidavit also ignores the Court’s direction that an affidavit from a party in an interim hearing should not exceed ten pages of text. It runs to 122 paragraphs over 18 pages.
The Mother’s affidavit also contains an amount of material that is irrelevant to the interim hearing, particularly paragraphs [3] to [15], where the Mother refers to the father working in a place which she calls “Dubia”.[3]
[3] Affidavit of Ms Viner 24.9.2012 at paragraph [15]
The Mother claims that the Father abused her on 3rd November 2011 by calling her a “fucking mole”, which led to her seeking the assistance of the police to obtain an Apprehended Domestic Violence Order, which was withdrawn on a date in April 2012.
The Mother deposes that the child [X] has a good relationship with her father’s three sons from a previous relationship, whom she describes as the child’s “step-brothers” (although they would more properly be described as “half-brothers”, because they share a common parent). She states that she encourages that relationship.
The Mother complains that the Father’s behaviour to her has been rude, hostile, abusive and aggressive. She denies that her behaviour has ever been erratic.
The Mother sets out in some detail in her affidavit particulars of her nine different residences between 2008 and 2012, giving an explanation as to why she has changed her address on each occasion.
The Mother criticises what she describes as the Father’s “lack of understanding about age appropriate conversations” and expressed a fear that the Father will continue to undermine the healthy relationship she has with [X].
At paragraph [50] of her affidavit the Mother states:
I am concerned about the Applicant’s alcohol dependency as I am not confident that the Applicant can moderate his alcohol intake when he has [X] in his care for longer than a couple of days. The Applicant also has in the past, while we were married, wet the bed when he has fallen asleep drunk.[4]
[4] Affidavit of Ms Viner 24.9.2012 at [50]
She further deposes at paragraph [59]:
On my return [X] was screaming, the Applicant was distressed and smelled of alcohol.[5]
[5] Ibid at [59]
Again, the Mother deposes at [61]:
In relation to paragraph 31.1, I told the Applicant that I thought he had an alcohol dependency and that he did not remember the horrible things he said to me.[6]
[6] Ibid at [61]
The Mother has expressed concerns about the Father’s mental health.[7]
[7] Ibid at [89]
Submissions
The Independent Children’s Lawyer submitted that the parents are highly entrenched in a highly complicated relationship and submitted that the Court should make the orders she proposed in her Minute.
Mr Dura of counsel submitted that the Mother by and large agreed with the Orders proposed by the Independent Children’s Lawyer, as witness her minute of Proposed Orders. He submitted that the evidence showed that little had changed and a Rice v Asplund[8] may arise. The Court should consider the matters set out in the Memorandum to Court arising from the Child Inclusive Child Dispute Conference. The Father presses the Orders sought in his Application in a Case.
[8] (1979) FLC 90-725
The Law to be Applied in Parenting Applications
When the Court is deciding whether to make parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considerations the matters set out in subsections (2) and (3) of s.60CC of the Act.
Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the presumption to be applied (s.61DA(4)).
The presumption applies when the Court is making an interim order unless the Court considers that it would not be appropriate to do so.
If the Court does make a parenting order providing for a child’s parents to have equal shared parental responsibility, the Court is required by subsection 65DAA(1) to consider whether the child spending equal time with each parent is both in the best interests of the child and reasonably practicable.
If the Court does not make an equal time order, the Court is required by subsection 65DAA(2) to consider whether it would be in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of those matters have been considered in making this decision.
Conclusions
The Mother and the Independent Children’s Lawyer have sought an order suspending all of the Consent Orders of 19th August 2008. Those Orders provided, at Order 2, that the parties were to have equal shared parental responsibility for the child.
Neither parent nor the Independent Children’s Lawyer seeks any order about parental responsibility. Thus, if the Consent Orders are suspended in toto, there would be no order for parental responsibility in place. In my view, the Court is required by s.61DA to consider the application of the presumption of equal shared parental responsibility, notwithstanding that no order to that affect is sought.
Whilst there is evidence of discord and lack of communication between the parties, I am not of the view that an order other than one giving the parties equal shared parental responsibility for the child should be made. As these are interim orders, the Court will be obliged to consider the question of parental responsibility afresh when making a final order, as the Court is required by s.61DB to disregard the allocation of parental responsibility made in the interim order.
I will order until further order that the parties are to have equal shared parental responsibility for [X].
Although it is not sought by either parent or the Independent Children’s Lawyer, the Court must still consider whether it is in the child’s best interests and reasonably practicable to spend equal time with each parent (see Goode v Goode[9] at [47]). The distance between the parents’ homes means that it would not be reasonably practicable for the child to spend equal time with each parent. The present degree of acrimony between the parents and the poor communication between them does not allow for the inference that such an arrangement would be in the child’s best interests.
[9] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC93-286
Neither parent nor the Independent Children’s Lawyer submits that any order other than an order providing that [X] should continue to live with the mother should be made. I propose to order that she should continue to live with her mother and consider whether it is both in her best interests and reasonably practicable to spend substantial and significant time with her father.
In deciding the proper time that the child should spend time with her father, the Court must regard the best interests of the child as the paramount consideration.
Notwithstanding the present difficulties between the parents, I am still of the view that it is in [X]’s best interests to have a meaningful relationship with both of her parents.
In considering the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence, I have considered the following:
a)The Mother’s claim of the Father’s alcohol dependency, leading to a claimed inability to care for the child;
b)The Father’s claim about the Mother’s mental instability; and
c)The evidence of hostility at changeover between the Father and Mr E.
The Independent Children’s Lawyer seeks an order that the Father submit to a CDT blood test (HPLC method), presumably for the purpose of assessing his blood alcohol level. I am not satisfied that the evidence of the Father’s alcohol use, or abuse, justifies such an invasive procedure. There would need to be a significantly greater degree of evidence of alcohol abuse to justice such an order.
I will, however, order that the Father is not to consume any alcohol during or for twelve hours before the time when [X] is in his care.
There is insufficient evidence to form a view that the Mother is of such an unstable mental state that she poses a risk of harm to the child.
The Independent Children’s Lawyer proposes and the Mother argues that the Mother’s friend Mr E should not personally facilitate any changeovers between the parents. There is evidence of hostility between the Father and Mr E at changeover, which would be unsettling to the child, and I propose to make such an order.
The allegations of threats, short of violence, made by the Mother, leading to an abortive application for a family violence order, do not amount to a major concern for the child’s welfare.
I have had regard to the Family Consultant Memorandum to Court regard [X]’s views. Although she is only seven years old, she is clearly happy living in [omitted] and likes her current school. She is sensitive to the acrimony between her parents.
There is nothing to suggest that the child does not have a good relationship with each parent.
This is not the time to be making any major change in the child’s arrangements. It would have a negative impact on her. Changeovers should continue to be at McDonald’s [omitted]. The Father’s proposal for changeover at [omitted] National Park would need to be the subject of evidence before the Court was satisfied of its practicability.
The child should remain at her present school, where it appears she is happy.
The Father seeks a relatively small increase in the amount of time that he spends with [X]. This would appear to be in her best interests, but it is clear that there needs to be a period of peace between the parties and a commitment by each one of them that the arrangements for [X] to spend time with her father should be followed and not the subject of acrimony and tension between the parties.
In my view, the application should come back to Court in approximately two months to allow time for the child to have a settled regime of time with her parents, unmarked by hostility or untoward behaviour between the parties.
The question of the parents attending a post separation parenting course can be revisited at the final hearing.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 23 January 2013
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