Hartnett and Sampson (No 2) - [2009] FamCA 769

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 2)

[2009] FamCA 769

FAMILY LAW – CHILDREN – Serious issues family violence – Considered as a preliminary matter – In absence findings family violence consider competing proposals of parties – Living in different States – Stability – Fostering relationships – Consequences of orders – Parental responsibility – Live with father – Wife’s orders for time dependent upon her decision to live near children – If so, equal time

APPLICANT:

Mr Hartnett

RESPONDENT:

Ms Sampson

FILE NUMBER:

(P)SYF

3827

2004

DATE DELIVERED:

25 August 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Jordan J

HEARING DATE:

27, 28, 29 & 30 April, 1 & 4 May, 27, 28, 29, 30 & 31 July and
12, 13 & 14 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Ray Swift Moutrage & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Gardiner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW

Orders

That the Husband, MR HARTNETT (hereinafter referred to as “the Husband”), and the Wife, MS SAMPSON (hereinafter referred to as “the Wife”), have equal shared responsibility for decisions affecting the long term care, welfare and development of the children, S born … April 2003 and T born … November 2004 (hereinafter referred to as “the children”), except as otherwise provided in these orders.
That the Wife have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with her and the Husband have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with him.
That the children live with the Husband.
That subject to Order 5 hereof, the children spend time with the Wife as follows:-
4.1During NSW school term:-
4.1.1In Geelong for two (2) three day weekends per term from 5.00 pm Friday to 5.00 pm Monday and, failing agreement, on the third and sixth weekends of each school term;
4.1.2In Sydney for a period of five (5) consecutive nights per term on the Wife providing to the Husband fourteen (14) days written notice of being in Sydney, being from after school Wednesday to before school Monday.
4.2During NSW school holidays:-
4.2.1For ten (10) consecutive days from the commencement of school holidays at the conclusion of term one;
4.2.2For one half of the school holidays at the conclusion of term two;
4.2.3For ten (10) consecutive days from the commencement of school holidays at the conclusion of term three;
4.2.4For one half of the school holidays commencing at the conclusion of term four, the first half to be in December 2009 and every alternate year thereafter, and in every other year the second half of the school holidays.
4.3For the purpose of Order 4.2, the NSW school holidays shall commence on the Saturday immediately following the last day…

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: [2009] FamCA 769
Decision Date: 25 August 2009

CaseChat Overview and Summary

This case involved Mr. Hartnett (the Husband) and Ms. Sampson (the Wife), who were parties to family law proceedings concerning their children, S and T. The primary dispute revolved around the parenting arrangements for the children, including issues of shared responsibility, living arrangements, and time spent with each parent. The matter was heard by Jordan J.

The court was required to determine the specific orders regarding the children's living arrangements and the allocation of decision-making responsibilities between the parents. This included establishing a detailed schedule for the children's time with each parent during school terms and holidays, as well as addressing communication protocols, notification of address changes, and the sharing of educational and medical information. The court also had to consider allegations of family violence and assess the credibility of the parties in relation to these and other matters impacting their parenting capacity.

His Honour, Jordan J, made orders for equal shared parental responsibility for long-term decisions concerning the children, while day-to-day decision-making was allocated to the parent with whom the children were residing. The children were ordered to live with the Husband, with specific provisions for the Wife to spend time with them during school terms and holidays, including a conditional arrangement for the children to live with each parent on a week-on-week-off basis in Sydney if the Wife chose to reside there. The court also made orders for telephone contact, time on birthdays, and notification of medical issues. In his decision, His Honour expressed concerns about the Husband's candour regarding his relationships, but ultimately found himself not satisfied that the allegations of physical assaults against the Wife had been made out. Conversely, His Honour expressed greater concerns about the Wife's reliability, particularly in relation to tape recordings and her explanations for inconsistencies in her affidavit material. Despite these concerns, the court noted the Wife's compliance with contact orders and the positive relationships the children maintained with both parents.

Orders

Orders of the court

That the Husband, MR HARTNETT (hereinafter referred to as “the Husband”), and the Wife, MS SAMPSON (hereinafter referred to as “the Wife”), have equal shared responsibility for decisions affecting the long term care, welfare and development of the children, S born … April 2003 and T born … November 2004 (hereinafter referred to as “the children”), except as otherwise provided in these orders.

That the Wife have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with her and the Husband have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with him.

That the children live with the Husband.

That subject to Order 5 hereof, the children spend time with the Wife as follows:-

4.1 During NSW school term:-

4.1.1 In Geelong for two (2) three day weekends per term from 5.00 pm Friday to 5.00 pm Monday and, failing agreement, on the third and sixth weekends of each school term;

4.1.2 In Sydney for a period of five (5) consecutive nights per term on the Wife providing to the Husband fourteen (14) days written notice of being in Sydney, being from after school Wednesday to before school Monday.

4.2 During NSW school holidays:-

4.2.1 For ten (10) consecutive days from the commencement of school holidays at the conclusion of term one;

4.2.2 For one half of the school holidays at the conclusion of term two;

4.2.3 For ten (10) consecutive days from the commencement of school holidays at the conclusion of term three;

4.2.4 For one half of the school holidays commencing at the conclusion of term four, the first half to be in December 2009 and every alternate year thereafter, and in every other year the second half of the school holidays.

4.3 For the purpose of Order 4.2, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.

4.4 For the purpose of these Orders unless otherwise provided, the Wife shall during school term collect S from M School in Sydney (“M School”) and T from T Preschool at the commencement of the period the children shall spend with the wife and return the children to M School and T Preschool fifteen minutes prior to the commencement of school/preschool at the conclusion of the period.

4.5 At all times other than changeover in accordance with Order 4.4, then the changeover shall be outside the front of St M Church, Sydney.

That in the event the Wife gives the Husband written notice within fourteen (14) days of the date of Order of her intention to reside in Sydney, the following Orders shall apply in substitution to Order 4:-

5.1 That during NSW school term, the children shall live with each parent in Sydney on a week on week off basis, with changeover to occur at M School upon completion of S’s schooling on Friday, with the Wife’s period to commence the first Friday immediately after giving written notice in accordance with this Order.

5.2 During the NSW school holiday periods:-

5.2.1 For one half of the school holiday periods at the end of terms one, two and three as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;

5.2.2 For the Christmas holidays as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;

5.2.3 For the purpose of this Order, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.

5.3 Should the Wife cease to reside in Sydney, then the provisions of Order 4 shall apply.

That the Wife have telephone contact with the children during the times they spend with the Husband each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.

That the Husband have telephone contact with the children during the times they spend with the Wife each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.

That the children spend time with the Husband on each of the children’s birthdays, the Husband’s birthday and J’s birthday (provided that the Husband shall give at least 7 days notice in writing to the Wife that J will be with him on his birthday) as follows:-

8.1 From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2009 and every alternate year thereafter.

8.2 From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.

That the children spend time with the Wife in Sydney on each of the children’s birthdays, the Wife’s birthday and Z’s birthday as follows:-

9.1 From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2010 and every alternate year thereafter.

9.2 From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.

10.

That the children spend time with the Wife on Mother’s Day from 6.00 pm Saturday preceding Mother’s Day until 9.00 am at the commencement of school the following Monday.

11.

That the children spend time with the Husband on Father’s Day from 6.00 pm Saturday preceding Father’s Day until 9.00 am at the commencement of school the following Monday.

12.

That the Wife and the Husband notify the other in writing not less than fourteen (14) days prior to any change to their residential address, email address, landline and/or mobile telephone numbers and such notification include the complete address of the proposed new residential address, email address, landline and/or mobile telephone numbers.

13.

That each parent forthwith authorise any school the children may attend to provide to the Husband and the Wife photocopies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of the children, or if none have been made available in writing, then each parent shall provide written particulars, which includes by email, of such reports and/or activities to the other within three (3) days of such documents or particulars being received from the school, and the parents shall authorise staff members at any school the children may attend to discuss the children’s progress with both parents.

14.

That each of the parents may attend the children’s schools or churches for the purposes of any school or church events parents are permitted to attend.

15.

That during any period during which the children or either of them is living with the Husband, in the event of the child or either of them being hospitalised or receiving medical attention, the Husband shall notify the Wife as soon as practicable (and in any event within two (2) hours) after his first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.

16.

That during any period during which the children or either of them is living with the Wife, in the event of the child or either of them being hospitalised or receiving medical attention, the Wife shall notify the Husband as soon as practicable (and in any event within two (2) hours) after her first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.

17.

That the Husband shall ensure the Wife is kept informed as soon as is reasonably practicable of:-

17.1 Any medical problems or illness suffered by the child/ren whilst in the care of the Husband.

17.2 Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Husband.

18.

That the Wife shall ensure the Husband is kept informed as soon as is reasonably practicable of:-

18.1 Any medical problems or illness suffered by the child/ren whilst in the care of the Wife.

18.2 Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Wife.

19.

That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, on the issue of credibility, the husband’s standing is tarnished, in my view, by my assessment that, at best, he deliberately withheld information about his current relationship with J because of its likely damaging impact upon his case. At best, he was less than full and frank in the detail he provided about J’s circumstances. Indeed, it is difficult to avoid the conclusion that the husband sought to actively mislead the Court about aspects of his relationships with both J and his former wife. The statement to Associate Professor Q at the interviews at the beginning of this year, to the effect that J was living with him full-time, is entirely incompatible with the fact that J and his father had rarely spoken to one another for the bulk of the preceding twelve months and did not regularly spend time together over that same period.(c)The Specific Allegations of Abuse by the Wife and the Circumstantial Evidence Surrounding those Allegations Given the sensitive nature of family violence and the way perpetrators and victims tend to hide such matters from the public, it is hardly surprising that the vast bulk of evidence on these matters is merely the sworn evidence of the individual parties containing allegations, denials and counter-allegations. In analysing this issue, I will focus upon some of the examples highlighted by the wife as part of her case as referred to in Exhibit 49 and in her affidavit filed on 6 July 2009, and the husband’s responses as they appear in his affidavits of 30 June 2009 and 27 July 2009. Of course, given the nature of family violence, there is rarely direct evidence such as photographs, eye witnesses and medical records. The absence of such evidence should never be used as a basis for rejecting such allegations. Nevertheless, it remains legitimate to give consideration to such matters. Such an exercise gains added significance in cases such as this, where the allegations are of repeated assaults involving substantial physical beatings over a period of many years. As a matter of logic, issues such as increasing frequency and severity of episodes of abuse provides for an increased prospect of detection or, alternatively, a decreasing prospect that such gross abuse can continue without coming to the notice of others. In this case, there were reports to the Police. Such reports were made by each of the parties. The records indicate that the Police were confronted with the same prospect as I am now, that is, allegation, denial and counter-allegation. It is to be noted that, in the end, the Police authorities did not take any action against the husband. There are, however, some aspects of the intervention of the Police which are of potentially some significance in the analysis process. The first matter to observe is that it is at least unexpected that the perpetrator of violence against a woman would be the one who sought to engage the involvement of the Police. That was the fact on more than one occasion, when the wife alleged she had been the victim of abuse. The prospect of being both perpetrator and reporter are, of course, not mutually exclusive, but it is somewhat unusual and provides one matter which might cause one to question some of the wife’s assertions.

Decision

Reasons for decision

I am less favourably disposed to the husband on the issue of his denigration of J once he learned of the report of abuse to the Department. The husband acknowledges he admonished J and I am inclined to accept that he used entirely inappropriate language in doing so, which verbal abuse caused J a great deal of stress. Having said that, I do need to take account of the fact that this incident of verbal abuse appears to have been an isolated incident, and whilst one could never excuse the husband’s conduct on that occasion, one needs to have an understanding of the fact that the husband was in the middle of protracted and extremely stressful litigation at that time, and the husband at that time particularly would have been only too well aware of the potentially devastating consequences of the report made by J and Dr WO’s reference of the matter to the Department.(f) Conclusions On the specific allegations of the physical assaults upon the wife, I am not satisfied, on the evidence, that a case has been made out against the husband. Whilst I have concerns about aspects of the husband’s testimony, particularly that relating to his relationships with his previous wife and J, and whilst I have preferred Ms Hartnett’s account of past incidents of violence and aggression, I am not satisfied that those matters are such as to draw me to conclude that the husband has lied about his history between the parties in these proceedings. In a general sense, I have been left with a far greater concern about aspects of the wife’s reliability. She seriously mislead the Court in a most fundamental way in relation to the tape recordings. She further seriously undermined the reliance which can be placed upon her own affidavit material by explaining away difficulties with assertions that she did not carefully convey instructions or carefully read affidavits before she signed them. In adopting a less critical overview of this aspect of the case than was contended for by the husband, I have concluded that the most telling aspect of the history is, firstly, the fact that, in the main, the wife has complied with all orders for contact. That is noteworthy in itself, because the prescribed Court regimes have been extremely onerous and required a great deal of effort on both sides, and the wife has consistently met her side of the bargain, albeit that there have been continual squabbles about aspects of implementation. Secondly, and even more importantly, as I have observed in earlier contexts, despite the wife’s issues with the husband personally, the children enjoy entirely positive and close relationships with their father and with J. Of course, no doubt, that is, in part, as a consequence of the inherent quality of the husband’s relationship with his own children but, in my view, the wife is also necessarily entitled to some credit in that regard. The husband’s case would suggest that the wife is a person who has incessantly sought to undermine him. She has had five years and two young, impressionable children to work with, if that was, indeed, her endeavour. The total absence of any flaws in the children’s relationship with the husband and their secure attachment to him is entirely inconsistent with that proposition.

Ratio Decidendi

Legal Principle Established

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