HAGARTY & BEVAN
[2017] FamCA 11
•18 January 2017
FAMILY COURT OF AUSTRALIA
| HAGARTY & BEVAN | [2017] FamCA 11 |
| FAMILY LAW – CHILDREN – With whom the child should live – Where the mother accepts she had past mental health concerns – Where the mother has long since stabilised – Where the maternal grandmother lives with the mother and is strongly supportive of her daughter – Where the father supports the mother living with the maternal grandmother for support – Where the father concedes the mother was the primary carer – Where the father has the capacity to care for the child full time and facilitate the relationship between the mother and child – Where the child is settled in the current arrangement living with the mother – Where the benefit to the child will be derived from stability – Where the opinion of the single expert is for the current arrangement to continue to provide stability – Decided maintaining the current orders for the purpose of stability outweigh any benefit of a change of residence – Ordered the child live with the mother FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother proposes equal shared parental responsibility as a final order –Where both parties have capacity to meet the child’s needs – Where the father is conscious of the mother’s past mental illness and supportive of that – Where time with the father will spend with the child will be essential to provide the mother a regular break from parenting – Ordered that the parents have equal shared parental responsibility |
| Family Law Act 1975 (Cth), ss 60CC, 64B Evidence Act 1995 (Cth), s 128 |
| APPLICANT: | Ms Hagarty |
| RESPONDENT: | Mr Bevan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Newcastle |
| FILE NUMBER: | (P)NCC | 220 | of | 2013 |
| DATE DELIVERED: | 18 January 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 16-17 May 2016 and 11-12 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kelly |
| SOLICITOR FOR THE APPLICANT: | Grant & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Boyd |
| SOLICITOR FOR THE RESPONDENT: | Kilpatrick Hatton |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Betts |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Newcastle |
Orders
That all prior Orders in relation the child B born … 2010 (“the child”) are discharged.
Parental responsibility
That the parties have equal shared parental responsibility for the child.
That when an issue arises in relation to the long term welfare and development of the child the parent raising the issue shall do so in writing by setting out a proposal and inviting a response from the other parent. The other parent shall respond in writing.
In the event that the parents are unable to agree on how to proceed with the issue raised the parents shall attend on a mediator to negotiate a resolution.
Residence
That the child live with the mother.
That the mother is restrained from establishing a residence for the child any further south of Newcastle, than T Town.
Time and Communication
That the child spend time with the father as follows:
7.1Until the conclusion of her primary school education on each alternate weekend from after school Friday to the following Wednesday morning with the father or his nominee to collect the child from school on Friday afternoon and deliver her to and from school until delivery on Wednesday morning;
7.2From the time the child commences Secondary school education, each alternate weekend from after school Friday to before school the following Monday and at such other and additional times as are agreed between the parties in consultation with the child; and
7.3For half of all school holidays, being:
7.3.1The first half in even numbered years with the father or his nominee to collect the child from school on the last day of term and return the child to the mother on the midpoint day at 4.00 pm; and
7.3.2The second half in odd numbered years with the father or his nominee to collect the child from the mother at 4.00 pm at the changeover point and return the child to school on the first day of the new term.
The parent the child is not spending time with during the first half of the Christmas Summer School Holiday shall have telephone/Facetime/Skype communication with the child between 9.30 am and 10.30 am on Christmas Day.
If the child is due to spend time with the father on the weekend of Mother’s Day time is suspended from 9.00 am on Mother’s Day for the balance of the period.
If the child would otherwise be living with the mother on the weekend of Father’s Day that time will take place from 6.00 pm Saturday before Father’s Day until return to school Monday following.
The parent not spending time with the child on that parent’s birthday or the child’s birthday shall have telephone/Facetime/Skype communication with the child between 4.30 pm and 5.30 pm that day.
Each parent shall permit the child to have telephone/Facetime/Skype communication with the other parent at any reasonable time. The parent with whom the child is living or spending time will facilitate the communication and afford the child privacy during the call.
Changeovers
Changeovers shall occur by the father or his nominee collecting the child from and returning the child to the child’s school, or if changeover is not at a time the child is collected from or delivered to school changeovers shall occur between the parties or their nominees at a McDonald’s Family Restaurant closest to the home of:
13.1The mother’s place of residence, at the commencement of the father’s time with the child; and
13.2The father’s place of residence, at the conclusion of the father’s time with the child
Education
That each of the parties is restrained from changing the enrolment of the child away from B School (other than for progression to High School) without the prior written consent of the other party.
That each party is to provide such consents and/or authorities as may be required by the school the child attends to enable each party to receive reports, school photograph order forms, letters and any other notices in relation to the child and to permit both parties to speak with the child’s teachers concerning her education and school performance, and both parties are at liberty to attend the school for parent teacher interviews and special events.
That each party is to keep the other informed of the child’s extra-curricular activities, including providing copies of all notes, reports, and the like to the other party, and each party is at liberty to attend any school or extra-curricular activity in which the child is involved and at which parents are permitted to attend, including all sporting activities.
Health and treatment
That each party is to promptly notify the other of any significant illness, or injury, suffered by the child requiring medical treatment, hospitalisation or medications, whilst in their care and provide details of such illness or injury, medical treatment, hospitalisation or medication to the other parent.
That these Orders be sufficient authority for the child’s treating medical practitioner(s) or allied health worker(s) to authorise such professional to provide information to the mother or father, at the request of the parent, to all matters including but not limited to:
18.1 Treatment;
18.2 Referrals;
18.3 Medication; and
18.4 Any other information regarding medical history.
Contact details
The parties shall provide each other with a contact telephone number and residential address and advise of any change as soon as practicable and within 7 days of such change occurring.
Passport and international travel
That the mother and father provide not less than 21 days written notice to each other of any planned travel arrangements outside the Commonwealth of Australia and shall provide the other with the following:
20.1 Copies of any forward and return travel tickets; and
20.2 An itinerary of the planned travel arrangements.
That the mother and father are restrained from causing or permitting the removal of the child to any country not signatory to the Hague Convention.
Both parties must do all acts and things, and execute any document necessary to make an application for or to renew a passport for the child. The parent seeking to apply for or to renew a passport for the child will be solely responsible for any costs associated with such application or renewal.
The mother shall hold the child’s passport.
The mother must release the child’s passport to the father at least 7 days prior to travel and upon the father’s request and provision of information in Order 20.
The father must deposit with the mother any passport for the child within 7 days of returning to the Commonwealth of Australia from any overseas travel.
Restraints
That the father is restrained from allowing the child to be left unsupervised with Mr D.
Each party is restrained from criticising and denigrating the other parent and members of the household of that parent within the presence or hearing of the child and shall remove her from the presence of third parties so doing.
Independent Children’s Lawyer
That the Independent Children’s Lawyer shall:
28.1 Explain the Orders to the child as soon as possible; and
28.2Provide a copy these Orders to the Principal of B School.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hagarty & Bevan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P) NCC 220 of 2013
| Ms Hagarty |
Applicant
And
| Mr Bevan |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for final parenting orders in respect of one child, a girl aged six years and six months at conclusion of the trial.
The applicant is the mother of the child. She is aged 41 years. She is qualified as a professional although not presently working. Her household consists of herself, the child, the maternal grandmother and on a regular but not full time basis, her partner of about three years Mr A. The mother lives in a suburb in the Newcastle area.
The respondent is the father of the child. He is now 42 years. He is employed as a technician. His household consists of himself and his partner of about 3 years, now fiancée, Ms C. The father lives in an inner suburb of Newcastle.
The two households are between 50 to 70 kilometres apart depending on the route taken. The trip by car is between 40 to 60 minutes.
The child currently spends time with the father in accordance with interim orders each fortnight from Friday after school until before school the following Wednesday morning.
Applications
By date of trial, the application of the mother was for retention of the status quo regarding parenting arrangements. She had recently abandoned her long standing application to establish a residence for the child with her in Sydney. She had made a decision to remain living in the area and to maintain the child at the child’s current school.
The orders sought by the father were that the parties share parental responsibility equally; that the child live with him; and spend time with the mother for 5 nights per fortnight (4 nights one week and one night in the other).
Provision was made in the orders proposed by the father for orders in the alternative if the mother moved away from the Newcastle area.
History of Relevant Events
The parties began living together early in 2004.
Between 2005 and 2008 they lived in Asia. They then returned to Australia.
In 2009 the parties married.
The subject child, the only child of the marriage, was born in 2010. The parties were living in Town N a southern suburb of Newcastle.
The birth of the child, which was traumatic for the mother, was the beginning of the end of the parties’ relationship.
During the following twelve months the mother was taken to hospital after reporting she would self-harm. The Department of Family and Community Services became involved.
The mother felt unsupported by the father. The father withdrew emotionally from what he perceived as a broken marriage.
Separation under the one roof
In February 2011 the parties ended their marital relationship. They remained living in the same house, occupying different areas, for the following two years. They were both involved in the care of the child.
It was a decision with multiple adverse consequences. There were, unsurprisingly, disputes and altercations between the parties. In 2012 the mother twice called the police for assistance.
In mid-December 2012 the parties engaged in mediation in an attempt to resolve disputes over parenting and property.
Final Orders by Consent February 2013
In 2013 the mother filed an application in the Federal Circuit Court for Divorce and for Consent Orders to be made.
On 13 February 2013 Orders in relation to parenting and property were made by consent. The orders apparently resolved all issues in dispute. The orders were 30 pages long.
The parenting orders were complex, providing for the child to spend nine nights per fortnight with the mother and five with the father although not in unbroken blocks. There were a great many changeovers for the child.
Separation of residences
In February 2013 after two years of conflicted separation in the same house, the mother moved out of the former matrimonial home. After a brief stay with the maternal grandmother, the mother moved to a suburb near the former family home.
In April 2013 the father began his current relationship with Ms C.
In May 2013 the parties were divorced.
In October 2013 the father filed an Application for Contravention in the Federal Circuit Court. It was withdrawn and dismissed with the parties directed to attend Family Dispute Resolution on the topic of where the child might attend day care/preschool. The child was then less than two years old.
In December 2013 the mother began her relationship with her current partner Mr A. The inherent difficulty was, and is, that Mr A lives and works in Sydney.
Application for Apprehended Violence Order
On 14 May 2014 the police applied on behalf of the mother for an Apprehended Violence Order (“AVO”) for her protection from the father.
In August 2014 that application was defended and ultimately dismissed in the Local Court.
The transcript of proceedings in the Local Court was tendered into evidence.[1] It reveals a tenacious focus by the mother on her interpretation of the father’s conduct which she described as threatening and which the Local Court interpreted as unobjectionable compliance with orders.
[1] Exhibit 8
The reasons for dismissal of the application for an AVO continued to resonate throughout these proceedings.
In an interim application between these parties, heard by me in November 2014, I referred to the dismissal of the AVO in the context of family violence and replicate the relevant paragraphs[2] here:
[2] Reasons for Judgment dated 14/11/2014
38.The mother in her comments to the family consultant referred to her not succeeding with an application for an apprehended domestic violence order as being “on a technicality”.
39.Having read the transcript of the proceedings in [Suburb E] Local Court, I cannot accept that that was the reason. There were proceedings where the mother gave evidence in the form of a prepared statement and was cross-examined. The mother during her cross-examination agreed that the father had never threatened physical harm to her. She denied threats of harm to the child, physical or sexual. The proposition was put that the mother simply wanted to vary the family law orders so that the father no longer came to the home. The mother agreed.
40.I note the following remarks by the local court magistrate at page 22:
This quite clearly is a family law dispute where the person in need of protection wanted to force changes to a Family Law set of consent orders without going through the appropriate process of taking the matter back to the Federal Circuit Court and getting the orders changed there. She instead adopted the approach of going to the Local Court via the police simply because a child was involved, and trying to force a change which was directly in contravention to consent orders that were initiated by herself.
41.In conclusion, her Honour said this at page 22:
I am not satisfied on any of the grounds that the order [for an apprehended domestic violence order] be made, and therefore I dismiss the application.
42.Taken together with the analysis of the notice of risk filed by the mother and the outcome of her application for an apprehended violence order, I am satisfied that there is no family violence involving the child or a member of her family.
Historical allegations were again raised in these current proceedings.
At a point in her oral evidence, the mother made the concession “no, he’s never physically hurt me or the child but I always feared that might happen”.
I continue to be satisfied that the complaints made by the mother about the father’s conduct prior to the separation of the parties do not constitute family violence.
In August 2014 the mother commenced work in an eastern suburb of Sydney.
Application to Family Court
In September 2014 the mother filed an application in this Court.
She sought to discharge the earlier Consent Orders (parenting) and proposed final orders including relocation for the child to Sydney with her.
The mother also proposed interim orders for relocation to Sydney and enrolment for the child at a school in Sydney for the 2015 school year.
In October 2014 the father filed his Response opposing the relocation, supporting discharge of the Consent Orders and seeking an order for the child to live primarily with him. The father opposed 2015 commencement of formal education for the child.
On 14 October 2014 the mother filed a Notice of Risk alleging that the child had been exposed to domestic violence of a verbal, emotional and psychological nature by the father; and also by a friend of the father, Mr D.
Interim Orders November 2014
On 4 November 2014 there was a hearing before me.
On 14 November 2014 interim orders were made and ex tempore reasons were delivered.
The mother was restrained from changing the residence of the child away from Newcastle area.
Each party was restrained from enrolling the child at school without the prior written consent of the other.
In December 2014 the Registrar directed the parties to prepare for the appointment of a Single Expert and gave leave to the Independent Children’s Lawyer (“ICL”) to forward the Children and Parents Issues Assessment (“CAPIA”) to the Department of Family and Community Services (“the Department”).
On 10 February 2015 the matter came back before me for the first day of a Less Adversarial Trial.
Soon after the maternal grandmother moved to live with the mother and child.
In March 2015 the father moved from Town N in the south of Newcastle to Suburb F, an inner city suburb of Newcastle.
Dispute over Pre-School Interim Orders May 2015
The next dispute which arose for determination by the Court was whether the child should continue to attend at two different preschools.
On 7 May 2015 the matter again came before me for hearing on the preschool issue and also variation of parenting orders.
Orders were made which had the effect of:
a)Enrolment at one preschool only;
b)Reduction in the number of changeovers whilst retaining the same nine day/five day ratio in blocks of time; and
c)A Single Expert was appointed – Dr H.
Recommendations of Single Expert
On 21 October 2015 the Report of the Single Expert was released. The Single Expert expressed the opinion that provided there were no findings of domestic violence perpetrated by the father, he and his partner would be better placed to give the child the security and predictability to remediate certain identified early experiences.
There was a foreshadowing in the report of the intensive focus by the mother during the trial on allegations of historical family violence and on Mr D.
On 3 November 2015 the matter was set down for final hearing (overlisted) for four days commencing 12 May 2016.
Interim Orders December 2015
In November 2015 there were interim applications in relation to school attendance for 2016 and other orders.
On 4 December 2015 orders were made permitting the mother to enrol the child at a school local to her residence. Orders varying time and providing for holidays were made by consent.
On 29 January 2016 the father filed an Amended Response, maintaining his application for residence and proposing orders tailored to his living in inner city Newcastle.
The mother did not file any Amended Application by the date directed (29 January 2016).
On 8 April 2016 the mother was granted leave, with the consent of all parties, to file and serve an Amended Application by close of business on that day. Directions were also made in respect of further witnesses sought to be relied on by the mother. An extension of time for filing of affidavits by the mother was granted.
The mother did file an Amended Application. It revealed, for the first time, that the mother no longer intended to pursue the move to Sydney.
That change of position, whilst positive for the child, came close to hearing when preparation was done.
The mother did not file any affidavit, including her own, within time.
On 12 May 2016 the trial commenced. The priority listing had resolved.
However, the ICL was unavailable for the first two days. Both parties asked for the trial to be delayed until the ICL could be available.
For that reason the matter was heard on the third and fourth allocated day 16 and 17 May 2016 and was then adjourned to 11 and 12 August 2016 for conclusion of hearing.
Judgment was reserved.
Evidence
The documents relied on in respect of the application were as follows:
The Mother
(a)Amended Initiating Application filed 08/04/2016;
(b)Notice of Risk and Child Abuse filed 14/10/2014;
(c)Affidavit of the mother Ms Hagarty filed 20/04/2016;
(d)Affidavit of Mr A, the mother’s partner, filed 09/05/2016;
(e)Affidavit of Ms Hagarty Snr, the maternal grandmother, filed 05/05/2016;
(f)Affidavit of Ms I filed 15/04/2016
(g)Affidavit of Ms J filed 15/04/2016
The Father
(h)Amended Response filed 29/01/2016;
(i)Affidavit of the father Mr Bevan filed 15/04/2016;
(j)Affidavit of Ms C, the father’s partner, filed 15/04/2016;
(k)Affidavit of Ms Bevan Snr, the paternal grandmother, filed 15/04/2016;
(l)Affidavit of Mr D, the paternal uncle, filed 16/05/2016;
Reports
(m)Single Expert Report of Dr H dated 28/09/2015; and
(n)Children and Parents Issues Assessment (“CAPIA”) dated 20/10/2014.
Oral Evidence
The Mother
The mother presented her case on the basis that she had accepted the opinion of the Single Expert[3] that the child had been exposed to considerable turmoil and needed stability.
[3] Exhibit 2, par 14
The child was, in the view of the mother, well settled in her home, school and parenting arrangements. On this basis, and because she felt more confident in finding employment in the local area, the mother had decided to forgo the move to Sydney.
Whether this position was arrived at through child focused insight, legal advice, fear of a change of residence or a combination of those factors it is to the credit of the mother that she made that decision.
The mother asserted that the child was doing well spending five nights per fortnight in a block each fortnight, and half school holidays with her father. She proposed equal shared parental responsibility as an appropriate final order. Despite that position the mother also focused strongly on her allegations of historical family violence and the father’s friend Mr D.
This inconsistent course was said to be justified by the adverse effect on the mother of the parents coming into contact with each other in future.
Cross examination of the father on behalf of the mother was closely focused on events during separation under the one roof, which may have upset the mother but were largely irrelevant to the issues for determination.
I conclude that the mother has continued to dwell on matters from the past and was determined to challenge the father about perceived slights and insults.[4]
[4] Exhibit 4
No matter how genuinely the mother was upset by such matters it is to the discredit of the mother, or her legal advisers, that so much time was utilised in this way.
The father’s closest friend Mr D was also the subject of unnecessary scrutiny. Witnesses were called for no other reason than to discredit him. He voluntarily made him himself available as a witness. He conceded his criminal record and his failings as a partner in past relationships.
The father had agreed prior to trial that he would consent to an order that the subject child would not be left unsupervised with Mr D. I took this to be a pragmatic compromise by the father.
In relation to Mr D, the mother said that in 2012 (during separation under the one roof) she had been “thinking seriously of having an AVO against [Mr D]”. She had thought he would be staying with them for a week, it became a month. The mother spoke to police who advised her that Mr D was a guest of the household.
The mother gave us an explanation for not proceeding with an application for an AVO that she had been scared that the paternal grandparents would turn their backs on her if she had taken an AVO out on the father and Mr D. It is hard to accept that response given that the mother made an application for an AVO against the father just prior to making her application to the Federal Circuit Court in 2014 to set aside the Consent Orders.
The mother sought an order restraining both parties from bringing the child into contact with Mr D or allowing the child to remain in his presence.
The consequence would be that if Mr D came to visit the father when the child was in the household. A breach of the restraint was inevitable.
If the mother understood the following points that I raised with her counsel on this topic there was no acknowledgement of it through him. The points being first that if the father was to share parental responsibility for the child equally with the mother, as she proposed, that was a reflection of her confidence in his decision making as a parent. The second is that compliance with restraints rely on the integrity of the party restrained to be compliant.
I concluded that the mother has a tendency to amplify events retrospectively. For instance it was raised with her that the 2013 Consent Orders had not contained a restraint on Mr D. In conceding it the mother said this:
I was forced, coerced, blackmailed and brow beaten into signing this document.
I cannot accept that assertion. The mother was legally represented at that time. Further an email from the mother in 2012[5] relating to ongoing settlement negotiations included some rude and confronting statements by the mother about the father, together with her stated preference for the father to continue living in the home for her protection.
[5] Exhibit 6
Likewise when the mother was taken to the part of the Application supporting the Consent Orders[6] in which she denied subjection to any past family violence, the mother, with the benefit of a certificate under s 128 of the Evidence Act 1995 (Cth) stated “We were both lying.”
[6] Exhibit 5
I consider that answer was convenient for the mother rather than truthful.
The proposed move to Sydney
The mother took a dismissive tone about the need to negotiate with the father for new contact arrangements when she decided to move to Sydney.
She was asked whether she had told the father that she was thinking of moving to Sydney and of seeking sole parental responsibility. She readily agreed that she had no memory of saying anything like that to him. She was unwilling to concede that the father would have been disappointed with the child moving away in those circumstances. Likewise, she did not acknowledge that he would likely oppose such a move.
Having given up the notion of moving away to Sydney, the mother was strongly against the prospect of moving closer into Newcastle. It is understandable. Her reasons for foregoing the opportunity to move to Sydney to work and live with her partner were the current settled arrangements for the child. Other than the travelling time between the two households, there is no disadvantage to the child in the current arrangements.
The mother certainly did not present fearful in her answer when tested about her view of the relationship between the father and his current partner the answer was “maybe it’s a court room stunt, maybe not, but he said they were getting married.”
The mother conceded that she had a mental health crisis when the child was a baby of about five or six months of age, “I accept I had some problems, low mood, marital problems, a lot of pain”. The mother described herself as extremely distraught at times and having flashes of harming herself. In any event the mother has long since stabilised. The evidence the Single Expert was that there had been attachment issues for the child with her mother in the first year or two “… shaky to start with, now repaired”.
The Single Expert gave as her opinion in the context of the mother deciding to stay in her current area “I can’t see the need for change unless there are parenting deficiencies in the household of the mother and maternal grandmother. The child is doing well at school. Don’t change time unless it is necessary. The child could lose trust in the availability of her needs being met by the mother.
The Single Expert also threw light on what appeared to be the dramatic, colourful and exaggerated responses of the mother at times during cross examination. The doctor said this, “Anxious people perceive events to be more serious and threatening than they are. It is important [for them] to look back and correct their thinking.”
I took the Single Expert’s evidence to be that because there had been a shaky start and because the mother had suffered at the time of the child’s birth, disruption to what is now a much more solid attachment, could be more significant for the child than if the attachment had been solid from the beginning. I give considerable weight to that evidence.
The mother also agreed that her densely written, up to three page emails, had not assisted the co-parenting relationship.
I conclude that the mother is a committed parent who does want to provide a stable and enjoyable life for the child. I accept the evidence of the Single Expert to the effect that “The mother is a vulnerable young woman. She finds stress particularly hard to manage. Having her mother there to assist with the functional aspects of parenting helps her to have a break and maintain a job.
The fact that the mother has chosen to remain in that household in that area and to keep the child at her school is child focused.
It is conceded that the first notice given to the father of the mother’s change of intention in relation to relocation to Sydney was on 22 March 2016. Giving the mother the benefit of the doubt, it is likely she had real difficulty in making that decision. Her partner lives and works in Sydney. She wishes to join him there and I consider it less likely that she had long made the decision and simply kept the father in the dark deliberately.
Ms J and Ms I
There were two witnesses called by the mother, Ms J and Ms I for the purpose outlined earlier in these reasons namely to discredit Mr D. There was no necessity for their evidence.
Ms J was an unimpressive witness. Her affidavit created the false impression, corrected by cross examination, that Mr D did not spend time with the child of her relationship with him. My impression was not only that she was motivated to assist the mother in her case, but had her own agenda in being publicly critical of Mr D.
Ms I was a reliable witness but very much absorbed by her own difficulties in contending with the problems of her child from her past relationship with Mr D. That child has likely been affected by exposure to his father’s poor conduct in a subsequent relationship. Mr D can be a violent man at times with his female partners. He concedes as much.
The Mother’s Partner, Mr A
Mr A was an impressive witness. He was honest and open in his responses. He indicated that there would likely be no work for him in the Newcastle area and it would be unlikely that he would move here. He had been hopeful that the mother would be able to move; ideally to central Sydney or to the northern most tip of Sydney which would make commuting possible. Even, to the Central Coast such as Town O.
It is apparent that quite understandably Mr A would like the mother and the child to be able to move to Sydney for the sake of their relationship but he said with some pride in her attitude that the mother always made the child her priority.
Although the mother had said that she had discouraged her partner from wanting to meet the father because he was “a dangerous man”, Mr A had no such inhibitions, he said “yes, absolutely” when asked if he would be prepared to meet the father.
The mother’s partner said that he would appreciate being able to sit and talk to the father “yes, it’s really important”. He said he had been trying to be neutral.
To his great credit, Mr A said that the child spoke well of her father and unprompted and spontaneously said “she loves him, of course she does.”
The Maternal Grandmother
The maternal grandmother was strongly supportive of her daughter and granddaughter. She also approves of the relationship with Mr A for the same reason, “She’s happy with [Mr A]”.
The maternal grandmother properly conceded that her daughter [the mother] had a fragile adult life. She acknowledged that the mother had suffered depression from her school age years, long before the birth of the child.
She also expressed the view that if the mother lived closer to the father she would become fearful and significantly she said this, “If [Ms Hagarty] is upset, that’s not good for the child.” This evidence resonates with the Single Expert’s professional evidence that the mother is easily stressed which is a risk factor for her attachment with the child.
The maternal grandmother skilfully managed the obligation to be both frank and supportive.
The evidence of the maternal grandmother in relation to the mother remaining in the home, with the father, for two years whilst they were separated was focused on financial security rather than safety. She said she had felt that if the mother left the home, she would never have the right to claim that home. She said she thought that the mother had been subjected to “terrorism” there based on what she had been told, but could not remember whether she had said to leave the home for her own safety. She agreed that she had not asked the mother to come and live with her. She again stressed that she had told her daughter that “if she left the home, [Mr Bevan] would take over the home.”
The maternal grandmother impressed as a supportive person for her daughter and granddaughter. She also has a similarly committed relationship to her other adult daughter who lives further south.
Unlike her daughter, the maternal grandmother conceded that she had always known that the mortgage, for which she was a guarantor, over the family home was kept in advance by the father. I conclude that she had confidence in the father as a reliable person in that regard.
She described the relationship between herself and the father during the course of her daughter’s marriage to him as a terrific relationship. Her attitude has changed based on things her daughter has told her but not through anything she has directly observed or spoken to the father about herself.
The maternal grandmother is willing to stay living with her daughter and granddaughter and I am satisfied that she represents an important relationship for the child, directly and indirectly, as a source of support and assistance for the mother.
The Father
The father has become frustrated by the mother’s conduct. The 2013 Consent Orders were the culmination of a long and difficult process of negotiation. Within 18 months there was a fresh application which involved the child being removed to Sydney. Trust and confidence was lost.
This is especially so because the mother is not a direct and straight forward communicator rather she has allowed the father to find things out. She allowed him to find out through her application that she wanted to live in Sydney. She did not allow him to find out that she had changed her mind until two months before the commencement of these proceedings.
The father no doubt felt supported by the opinion of the Single Expert that he and his partner would be able to provide a more stable environment for the child. It is apparent that he has found it difficult to understand why the mother has, from his perspective, exaggerated at best, or lied at worst, about his conduct.
The application for the AVO in the Local Court was defended by him and must have been confronting. Having read the transcript of the proceedings,[7] I accept and endorse the conclusion of the Local Court that the mother wanted an AVO, not so much for protection but as a compelling reason to justify a change in the orders and as a basis for moving away to Sydney from the area where the father lived.
[7] Exhibit 8
The father made concessions about the mother’s care of the child, in that she had been the primary carer and also, that although he had some concerns about her mental health, he tried to keep them to himself because for a long time he had wanted to reconcile the marriage.
In relation to Mr D, the father conceded that his friend of long standing had a history of mental health problems, a serious gambling problem and had a recent psychiatric admission to hospital. To his credit, the father stated he could understand the mother’s concerns about Mr D but “It’s my responsibility to evaluate the child’s care when she’s in my care, including any contact with [Mr D]”. I accept that the father’s assessment of his role is an accurate one.
The father was taken in minute detail to elements of evidence relating to violence by Mr D in the context of family relationships. The father conceded “He’s not the poster boy of friends” and in answer to the question “What has he got to offer the child?” the father very fairly said, “I’m not saying he’s got anything to offer the child, I’m not going to bring him into contact with the child deliberately.”
He also said that he was hopeful to be married in the following year and expected that his friend Mr D would be present. The order sought by the mother would thwart that possibility.
The father conceded that the mother might be less stressed if there was an order of the type she sought made, but he said two things, “It’s not my responsibility to always reduce [Ms Hagarty’s] stress” and that he had already agreed to be restrained from leaving the child unsupervised in his friend’s presence. I accept the evidence of the father that he is loyal to his friend, but clear sighted, and would always give priority to his daughter’s needs over those of his friend but is unwilling to pander to the mother’s fears for reasons unrelated to the child’s safety and welfare.
The father made an impressive statement in support of the mother:
I think [Ms Hagarty’s] is a good mother, she tries to work with the child and she’s very empathetic to [others]. When I was with her, she was pretty good fun, we had a good laugh. She gives the child a lot of love as only a mum can give. That’s the most important thing.
The father said that he and the mother had struggled because of the mother’s desire to go to Sydney. I conclude that his application for residence was motivated by a need to provide a stable life for the child and that even now he is uncertain about whether the mother will again press for a change of arrangements. I have no doubt that the father has the capacity and willingness to care for the child full time and that he would facilitate the relationship between the child and her mother.
The father has reflected on the mother’s new relationship with a man living in Sydney and is concerned that a further application will be made.
The father gave impressive evidence about his concerns about the mother’s mental health after the birth of the child and during separation. He said he was conversant with anti-depressants and encouraged the mother to take them. He was concerned that the mother had suicidal thoughts and had rung Beyond Blue. He had also organised an appointment with the mental health team whom he trusted as professionals. He said that when the mother took her medication her mood stabilised, although she could still be a bit stressed. I am satisfied that the father supports the relationship between the child and the mother but understands the fragility in the mother’s mental health. He also was strongly supportive of the mother continuing to live with her own mother, “She needs a second person to cope”.
The father agreed that he had contributed to conflict between them with some Facebook posts which had, in the inevitable way of such posts despite privacy settings, been drawn to the mother’s attention.
The Paternal Grandmother
The paternal grandmother has maintained a civil relationship with her former daughter-in-law and is clearly devoted to her granddaughter.
She has helped care for the child both before and after separation of the parties.
She lives in a rural area but travelled down every second weekend to spend time with the child on Tuesdays in the block period of time that the child spent with her father. Once the child started school the paternal grandmother would pick her up on Monday afternoon and drop her off again on Tuesday morning. This was also an opportunity for the child to catch up with cousins in the extended paternal family.
During the course of the child’s life the paternal grandmother has offered help and assistance to the mother and the child.
The paternal grandfather is presently in poor health and that is the only restriction on the ability and willingness of the paternal grandmother to do whatever she can to assist her son and granddaughter.
I consider that the paternal grandmother is an important and warm presence for the child.
The Father’s Partner, Ms C
Ms C has been extensively involved in the life of the child since 2013 .She has two degrees, one in teaching, and has worked in early childhood teaching for ten years. She spoke, through her affidavit, of a fond and affectionate bond with the child and a willingness to be firm if necessary.
There was no challenge to her role in the life of the child.
On behalf of the mother she was questioned about Mr D and agreed that he had recently come to the home at a time when he needed some help from the father with overnight accommodation. She was a straight forward witness.
Ms C thought the mother was unreasonable in her attitude to Mr D, only because the child really did not see Mr D very often and she thought that it should be a matter to be left to the judgement of the father. She said, and I accept that she would follow an order for no unsupervised time between the child and Mr D.
The father and Ms C plan to marry early in 2017 and hope to have children.
I accept that Ms C is committed to assisting the father in his care of the child but has her own independent and affectionate relationship with her.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
This child has a meaningful relationship with each of her parents and continues to be strongly and warmly attached to each of them.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child has also developed a strong and affectionate bond with the father’s partner and the mother’s partner. The child has an important relationship with her maternal grandmother who she lives with, and her paternal grandmother who she has seen on a regular basis and with whom she has enjoyed extended family occasions with cousins and other relatives.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The child is settled in the current arrangement and will benefit from continuing to spend extended alternate weekend blocks of time with her father. Travelling to and from school from the father’s house on Monday Tuesday and Wednesday morning in each alternate week is likely to become onerous as school work becomes more demanding of her time.
Once the child is at high school, extended weekends should be from Friday after school until back to school Monday and orders will be made accordingly.
In this matter, the contest became the current arrangements remaining in place or the child moving to live with her father in Newcastle. I accept the submission made on behalf of the mother that if the Court accepts there is a benefit to the stability of maintaining current arrangements by the mother remaining where she is, that should prevail over any perceived benefit in the father’s household which would require a change of school and a reduction of time spent with the mother and the maternal grandmother.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The views of the child are that if she had a magic wand and could decide whom to place in two houses, she would have living in her house her mother and maternal grandmother, living in the other house her friend L. She wanted more time with both her parents. She was described[8] as a tall, vivacious, playful, five year old, articulate and conscientious with her drawing.
[8] Single Expert Report dated 28/09/2015, page 4.2
It is obvious from the description that she is a child who is progressing well and is being raised by two parents who have the capacity to meet her needs.
This assessment was also made by the Single Expert:[9]
[The child] has had a very unfortunate start to her life, arising from her traumatic birth and her experience of her mother’s Post Natal depression, with early attachment difficulties and (the Mother’s) subsequent recurrent stress and anxiety.
Other destabilising influences on her development have been the chronic inter-parental conflict over her, different parenting styles, multiple moves of houses with her mother and the persistent uncertainty about her future. She has also had to adjust to both parents re-partnering and being enrolled in two childcare centres. (original emphasis)
[9] Single Expert Report dated 28/09/2015, page 23.1
In the event that the mother had pressed for relocation to Sydney, it is hard to see how such a move could have benefitted this child given her history. Stability has been hard won and must be maintained.
Parental Responsibility
Both parties ask the Court to make an order for equal shared parental responsibility.
Each party has the capacity to meet the needs of the child.
The mother has some fragility arising from episodic mental illness, in the form of depression and anxiety. The father is conscious of that and is supportive of the child maintaining her relationship in circumstances where the mother has given priority to the needs of the stability of the child. That is not to diminish the clear preference of the father for the child to live with him.
I accept the evidence of the Single Expert that the best course is for the current arrangements to continue; the child living with the mother and grandmother; attending the local school and being a part of her local community. Time with the father will continue to be essential, not only on account of the relationship between the two but to give the mother a break on a regular basis from full time parenting.
Equal shared parental responsibility will be a benefit for the child. Both parents should make a decision about how she is educated. They have disagreed in the past and were unable to agree on which preschool she should attend, and on which year she should start school. An order will be made that when an issue arises for determination, the parent who identifies the issue, should contact the other parent, put a proposal, and in the event of disagreement, the parties should attend mediation before resorting to Court proceedings again.
I consider that to give one parent sole parental responsibility would be to generate conflict and undermine confidence in the child that each of her parents was equally involved in the important decisions and events in her life.
Conclusion
I have concluded that the child should remain in the primary care of her mother and continue with the present arrangements for time with her father. I am satisfied that those orders together with restraints on removal from her current school without the prior written consent of both parents and on a change of residential area will maximise stability for her.
Holidays will be fully shared and meetings between the parents minimised by changeovers at school wherever possible. Provision has been made for nominees to be appointed by the parents to effect those changeovers.
To minimise the impact of travel of almost an hour each way for the child Christmas Day has not been divided between the parties. I have adopted the proposal of the father in that regard. The child will have the opportunity to celebrate Christmas in the house of each parent, in alternate years, relaxed and not disrupted.
The parties have a significant history in the Court. It is time for litigation to cease. The orders provide a way forward to share parental responsibility as both parents ask to do. In the event that they cannot agree on a particular issue there is a direction to mediation.
I have accepted the submission of the ICL that orders sought by the father for overseas travel and passports should be made, to obviate future applications. The parties have worked and travelled overseas. It is probable that either or both will wish to travel with the child in future. I have likewise accepted the submission that the resident parent should hold the child’s passport.
In relation to the restraint in respect of Mr D, for the reasons stated, the order will be that she not be left in the unsupervised care of Mr D during periods of time with her father. I am entirely confident that the father is protective and more than capable of giving his daughter’s needs priority.
Orders are made accordingly.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 18 January 2017.
Associate:
Date: 18 January 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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