HIGGINS & HIGGINS
[2012] FMCAfam 815
•13 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HIGGINS & HIGGINS | [2012] FMCAfam 815 |
| FAMILY LAW – Children – parenting – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – three children – daughter aged 17 years – sons aged 15 years and 10 years 8 months – where daughter living with mother – where sons living with father – whether equal time with each parent is in a child’s best interests and reasonably practicable – whether substantial and significant time with each parent is in a child’s best interests and reasonably practicable – where a family violence order was in force against the father in favour of the mother and daughter. PRACTICE & PROCEDURE – Where parties offered the opportunity to make submissions about any circumstances that may have arisen since the hearing concluded. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA, 68L |
| Higgins & Higgins [2011] FMCAfam 326 Langan & Thurston [2012] FMCAfam 345 MRR v GR (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220; [2010] HCA 4 |
| Applicant: | MS HIGGINS |
| Respondent: | MR HIGGINS |
| File Number: | SYC 5083 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 4-5 August 2011 |
| Date of Last Submission: | 5 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr Rosic |
| Solicitors for the Respondent: | Aitken Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Fermanis |
| Solicitors for the Independent Children’s Lawyer: | Gonzalez & Co |
ORDERS
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 2001.
The child [X] born [in] 1995 is to live with the Mother.
The child [X] is to spend such time with the Father as the child shall decide and the parties shall agree.
The Mother is permitted to travel outside the Commonwealth of Australia with the child [X] provided that she gives to the Father written notice of her intention to do so and provides to him an itinerary including details of the destination or destinations, flight numbers and times and an address or addresses where the child may be contacted whilst out of Australia no later than seven (7) days before the proposed date of departure from Australia.
The child [Y] born [in] 1997 is to live with the Father.
The child [Z] born [in] 2001 is to live with the Mother.
The child [Y] is to spend time with the Mother as follows:
(a)each alternate weekend during the school term from the conclusion of school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning;
(b)on the weekend that includes Mother’s Day in each year from the conclusion of school on the Friday until the commencement of school on the Monday morning;
(c)on the Mother’s birthday, from after school until 7:00pm;
(d)on [Y]’s birthday from after school until 7:00pm if on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Mother as provided by these Orders;
(e)on the birthday of the child [X] from after school until 7:00pm if that day falls on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Mother as provided by these Orders;
(f)for the second half of the Autumn, Winter and Spring school holidays in 2012 and all even numbered years thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the last day before the child is due to return to school;
(g)for the first half of the Autumn, Winter and Spring school holidays in 2013 and all odd numbered years thereafter commencing at the conclusion of school on the last day of the school term and concluding at 9:00am on the middle Saturday of the school holiday period;
(h)from 4:00pm on Christmas Day until 4:00pm on Boxing Day in 2012 and all even numbered years thereafter;
(i)from 4:00pm on Christmas Eve until 4:00pm on Christmas Day in 2013 and all odd numbered years thereafter;
(j)from 2 January until 23 January in each year; and
(k)at such other times as the parties may agree.
For the purpose of giving effect to the above Order the weekends that the child [Y] spends with the Mother shall be the same weekends as the child [Z] remains living with the Mother.
The Father is to ensure that [Y] is permitted to communicate with the Mother and with his sister [X] by telephone at any reasonable time.
The child [Z] is to spend time with the Father as follows:
(a)each other weekend during the school term not being the weekend when [Y] is spending time with the Mother as provided by Order (7)(a) above from the conclusion of school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning;
(b)on the weekend that includes Father’s Day in each year from the conclusion of school on the Friday until the commencement of school on the Monday morning;
(c)on the Father’s birthday from after school until 7:00pm if on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Father as provided by these Orders;
(d)for the first half of the Autumn, Winter and Spring school holidays in 2012 and all even numbered years thereafter commencing at the conclusion of school on the last day of the school term and concluding at 9:00am on the middle Saturday of the school holiday period of the school holiday period;
(e)for the second half of the Autumn, Winter and Spring school holidays in 2013 and all odd numbered years thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the last day before the child is due to return to school;
(f)from 4:00pm on Christmas Eve until 4:00pm on Christmas Day in 2012 and all even numbered years thereafter;
(g)from 4:00pm on Christmas Day until 4:00pm on Boxing Day in 2013 and all odd numbered years thereafter;
(h)on the weekend that includes Greek Orthodox Easter Saturday and Greek Orthodox Easter Sunday in each year from 6:00pm on the Friday evening until 9:00am on the morning of Greek Orthodox Easter Monday; and
(i)from the conclusion of school on the last day of the final school term in December each year until 4:00pm on Christmas Eve in 2012 and all even numbered years thereafter and until 4:00pm on Christmas Day in 2013 and all odd numbered years thereafter;
(j)on such of the days in the school holidays in January each year that the child [Y] is not spending time with the mother as provided by Order (7)(j) above; and
(k)at such other times as the parties may agree.
The mother is to ensure that [Z] is permitted to communicate with the Father by telephone at any reasonable time.
TO AVOID DOUBT it is the intention of these Orders that the children [Y] and [Z] will spend weekend days, school holiday time, special days including birthdays, Mother’s Day, Father’s Day, Christmas Eve, Christmas Day, Boxing Day, Greek Orthodox Easter Saturday and Greek Orthodox Easter Sunday together no matter with which parent they are spending time according to these Orders.
Each party must inform the other of any illness or injury to any of the children requiring medical or hospital treatment and any medication prescribed for any of the children as soon as practicable.
Each party must inform the other of any proposed change of residential address no later than seven (7) days before any such change.
Each party must inform the other of any change to their landline or mobile telephone numbers or email address within twenty-four (24) hours of such change.
Each party is permitted to obtain from the children’s schools copies of all school reports, newsletters, information about school photographs and other documents usually provided by the school to parents of children attending that school.
Each party is permitted to attend any school function at which parents of children attending that school normally attend.
Each party is permitted to arrange his or her individual interview with the children’s school teachers at such time as the children’s school normally conducts parent-teacher interviews.
The parties are restrained by injunction from:
(a)using any of the children to pass messages to the other party;
(b)discussing these Orders or these proceedings with any of the children; or
(c)denigrating or criticising each other or members of each other’s family to any of the children or in the presence or hearing of any of the children.
The Registrar is to release to the Mother the passports of the children [X] and [Z].
The Registrar is to release to the Father the passport of the child [Y].
The parties are each permitted to travel outside the Commonwealth of Australia with the children [Y] and [Z] provided that each one gives to the other written notice of their intention to do so and provides to the other party an itinerary including details of the destination or destinations, flight numbers and times and an address or addresses where the children may be contacted whilst out of Australia no later than twenty-one (21) days before the proposed date of departure from Australia.
In order to give effect to the above Order each parent must provide to the other the passport of the child [Y] or the child [Z] whichever the case may be no later than fourteen (14) days prior to the proposed date of departure from Australia.
IT IS NOTED that publication of this judgment under the pseudonym Higgins & Higgins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5083 of 2010
| MS HIGGINS |
Applicant
And
| MR HIGGINS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother for parenting Orders relating to the parties’ three children, [X], [Y] and [Z].
[X] was born [in] 1995, so she has just had her seventeenth birthday.
[Y] was born [in] 1997. He has recently attained the age of fifteen tears.
The youngest child, [Z], was born [in] 2001. He is aged ten years and eight months.
Background
The parties commenced living together in April 1993 and were married [in] 1994.
The Applicant Mother was born [in] 1973. The Respondent Father was born [in] 1969.
The parties separated in late January 2010 when the Mother moved out of the matrimonial home, taking the three children with her. The Mother claimed in her supporting affidavit that the Father had assaulted her.
The Mother commenced proceedings by filing an Application for parenting, property and urgent spouse maintenance on 12th August 2010. The financial proceedings are being dealt with by this Court separately.
The Mother sought at that time orders that the parties should have equal shared parental responsibility for the three children and that the children should live with her. The proposed orders envisaged the children spending time with their father for two nights each week, on alternate weekends and for half of the school holidays.
On 3rd September 2010 the Respondent Father filed a Response seeking equal shared parental responsibility for the children and a shared care arrangement over a fortnight.
The Mother has formed a new relationship with a man named Mr F.
The parties attended a Child Dispute Conference with a Family Consultant on 17th September 2010. From the Family Consultant Memorandum to Court dated that same day it appeared that the parties had reached agreement about all parenting issues, including parental responsibility and the time the children would spend with each parent.
On 6th September 2010 the parties entered into Interim Consent Orders that dealt with certain property orders and a number of parenting orders. The effect of the interim parenting orders was that:
a)The parties would have equal shared parental responsibility for the children;
b)The children would live with the Mother;
c)The children would live with the Father:
i)Each week during the school term from the conclusion of school on Monday until the beginning of school on Wednesday; and
ii)Each alternate weekend.
The parties did not consent to any orders relating to school holiday time.
The proceedings between the parties were listed for Final Hearing on 4th and 5th August 2011.
There was an altercation between the Father and the parties’ daughter [X] on 14th February 2011, which led to the Mother contacting the Police.
The two boys spent time at their father’s residence. They did not return to the Mother. Later, the younger boy [Z] returned to the Mother’s care but the older boy, [Y], sent his mother a text message saying that he was going to stay with his father from then on.
The Mother filed an Application in a Case on 21st February 2011, which was returnable 4th April 2011. In that Application, the Mother sought orders that, inter alia:
a)The Father’s time with [X] should be suspended;
b)The Father should return [Y] to the mother’s care;
c)If the Father did not return the child to the Mother, a Recovery Order should issue; and
d)The Father should surrender the children’s passports to the Mother.
The Mother filed an Amended Application on 1st April 2011, in which she sought to vary the parenting Orders she was seeking. The Mother now sought orders that:
a)The boys [Y] and [Z] should spend time with their father each alternate weekend during the school term, on days of special significance and for half of the school holidays; and
b)The Father would only spend time with [X] at times agreed by the parties and in accordance with [X]’s wishes.
The Father filed a Response seeking to vary the previous interim orders of 6th September 2010 so that:
a)[X] would live with the Mother and spend time with the Father according to her wishes until the outcome of Apprehended Domestic Violence proceedings;
b)that [Y] and [Z] would live with him and spend time with their mother:
i)as to [Y], in accordance with his wishes; and
ii)as to [Z] in accordance with his wishes at a minimum of each alternate weekend; and
c)that [Y] and [Z] should be permitted to accompany the Father to Fiji for a holiday.
On 4th April 2011 the Court ordered the parties to attend a Child-Inclusive Child Conference with a Family Consultant
After an Interim Hearing on 5th April 2011, the Court made interim orders on 11th April 2011 (Higgins & Higgins[1]). The Court also made interim orders by consent that that:
a)[X] would live with her mother and spend time with her father in accordance with her wishes:
b)the Mother would deliver [X]’s passport to the Court; and
c)the Father would deliver the passports of [Y] and [Z] to the Court.
[1] [2011] FMCAfam 326
The orders made by the Court on 11th April 2011 provided that:
a)the Father was permitted to take [Y] and [Z] to Fiji for a holiday between 21st April and 27th April 2011;
b)a Family Report be ordered under the provisions of s.62G of the Family Law Act; and
c)the children’s interests would be independently represented by a lawyer under s.68L of the Family Law Act.
The parties and the children attended the Child-inclusive Child Dispute Conference on 5th May 2011.
On 17th May 2011 the parties entered into further Interim Consent Orders varying the earlier Orders and providing that:
a)[Y] would live with his father and spend time with his mother according to his wishes;
b)The Father would use his best endeavours to encourage [Y] to spend time and communicate with his mother.
The parties were divorced on 30th June 2011.
The parties attended a Final Hearing of the Application for Parenting Orders on 4th and 5th August 2011.
Orders Sought by the Parties
The Applicant mother seeks the following Parenting Orders:
1. That all previous parenting Orders be discharged.
2. That the parents shall have equal shared parental responsibility for the children [X] (dob: [omitted] 1995), [Y] (dob: [omitted] 1997) and [Z] (dob: [omitted] 2001) (‘the children’)
3. That the parents shall each have responsibility for the day-to-day decisions in relation to the care of the children during the periods that the children are in his/her care respectively.
4. That the children live with the Mother.
5. That [Y] and [Z] spend time with the Father as follows:-
5.1During school terms:-
5.1.1 each alternate weekend from the conclusion of school on Friday to 5.00 pm on Sunday;
5.2During school holidays and special days:-
5.2.1 One half of all NSW Gazetted School holidays
5.2.2 from 4pm on Christmas Eve to 4pm on Christmas Day in 2012 and each even year thereafter and from 4pm on Christmas Day to 4pm Boxing Day in 2011 and each odd year thereafter;
5.2.3 from 4pm Easter Thursday to 4pm Easter Sunday in 2012 and each odd (sic) year thereafter.
5.2.4 On [Y] and [Z]’s birthday(s) as agreed but failing agreement for a minimum of three (3) hours on each of their birthdays;
5.2.5 the father shall not have [Y] and [Z] on the weekend which includes Mother’s Day but in substitution the Father will have [Y] and [Z] with him on the following weekend at the same times as set out in 4.1.1 above;
5.2.6 the Mother shall not have the children on the weekend which includes Father’s Day but in substitution the Mother will have the children with her on the following weekend at the same times as set out in 4.1.1 above;
5.2.7 such further times as the partiers may agree, from time to time.
6. That the Father spend time with [X] at times agreed to by the Mother and Father and in accordance with the wishes of [X].
7. That the parties be restrained by injunction from denigrating the other party or members of the other party’s family to the children or in the presence of the children or at all.
8. That the parties have telephone contact with the children at any reasonable time the children are in the care of the other party.
9. That both parties inform the other party within 24 hours or as soon as practical of any emergency relating to the children and provide all necessary authority for that party to attend on the emergency.
10.That both parents will be entitled to attend all events involving the children including but not limited to:
10.1Sporting fixtures;
10.2Extra curricular activities that allow for parental attendance; and
10.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions and the parent who has the children in their care on the day of such an activity will be responsible for their day to day care at such an event and the children’s transportation to and from that event unless otherwise agreed between the parties.
11.That both parties are to ensure the other party is informed of:
11.1All medical problems or illnesses suffered by the children whilst they are in their respective care, including any visits to doctors or hospitals;
11.2Any medication that has been prescribed for the children;
11.3Any social, school or religious functions the children are to attend;
11.4Any change of residency greater than a radius of 20km;
11.5Any other matter relevant to the children’s welfare.
12.That both parties are to keep the other party advised of their current residential address and contact telephone numbers (including both landline and mobile phone number as applicable) and advise the other party of any changes to these details within 14 days of such change occurring.
The Respondent Father seeks the following Parenting Orders:
1. That the parents shall have equal shared parental responsibility for the long-term care, welfare and development of the children, namely:
1.1[X] born [in] 1995 (“[X]”)
1.2[Y] born [in] 1997 (“[Y]”)
1.3[Z] born [in] 2001 (“[Z]”).
2. That the parents shall each have responsibility for the day to day decisions in relation to the care of the children during the periods that the children are in his or her care respectively.
3. That [X] live with the Mother.
4. That pending the AVO outcome then [X] spend time with the Father in accordance to her wishes.
5. That [Y] and [Z] live with the Father.
6. That [Y] spends time with and communicates with the Mother in accordance with his wishes.
7. That the Father uses his best endeavours to encourage [Y] to spend time with and communicate with the Mother as follows:
7.1each alternate weekend from the conclusion of school on Friday until the beginning of school on Monday;
7.2by telephone at least 3 times per week; and
7.3at any other times as agreed.
8. That [Z] spends time with and communicates with the Mother as follows:
8.1each alternate weekend in conjunction with [Y] (Order 7.1 herein) from the conclusion of school on Friday until the beginning of school on Monday;
8.2by telephone at least 3 times per week; and
8.3at any other times as agreed.
During School Holidays and Special Days
9. That [Y] and [Z] spend time with the parents as follows:
9.1one half of all New South Wales Gazetted school holidays;
9.2with the Father from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day in 2012 and each even year thereafter and from 4.00 pm on Christmas Day to 4.00 pm Boxing day in 2011 and each odd year thereafter;
9.3with the Mother from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day in 2011 and each odd year thereafter and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day 2012 and each even year thereafter.
9.4every Greek Orthodox Easter with the Father from 4.00 pm on Greek Orthodox Easter Thursday to 4.00 pm Greek Orthodox Easter Sunday and also when it falls during the same period of the New South Wales Gazetted Easter Holidays;
9.5the Father shall not have the children on the weekend which includes Mother’s Day but in substitution, the Father will have the children with him on the following weekend;
9.6the Mother shall not have the children on the weekend which includes Father’s Day but in substitution, the Mother will have the children with her on the following weekend;
9.7such further times as the parents may agree from time to time.
10.That the Father and Mother inform the other parent within 24 hours or as soon as practical of any emergency relating to the children and provide all necessary authority for that parent to attend on the emergency.
The Father also seeks the usual orders that:
a)both parties be entitled to attend sporting fixtures, extra curricular activities and school functions involving the children;
b)the parties should inform each other of medical issues, prescribed medication, school or other functions, any change of residency greater than a radius of 20 kilometres, and other matters relevant to the children’s welfare;
c)the parties are to keep other advised of their other addresses and telephone number;
d)that the Registrar of the Court release [X]’s passport to the Mother and the passports of [Y] and [Z] to the Father; and
e)each parent be permitted to travel outside the Commonwealth of Australia with the children on giving proper notice and providing an itinerary and other relevant documents.
Evidence
For the parenting proceedings, the Applicant Mother relies on the following documents:
a)her Amended Application filed on 1st April 2011;
b)her affidavit sworn 14th June 2011; and
c)the affidavit of Mr F sworn 23rd June 2011.
The Father relies on:
a)his Amended Response filed on 29th July 2011; and
b)his affidavit of 15th July 2011.
The Mother, Mr F and the Father all gave oral evidence.
It is the Mother’s evidence that she had been the primary caregiver throughout the marriage, up to the date of separation in late January 2010. She asserted that the Father had had “a somewhat strained relationship”[2] with the two older children prior to the parties’ separation and would often be “irritable and bad tempered”.[3] The Mother claimed that the Father started to display symptoms of auditory hallucinations, “hearing voices”, and consulted a psychiatrist and a psychologist after the parties separated.
[2] Affidavit of Ms Higgins 14.6.2011 at paragraph [10]
[3] Ibid
The Mother referred to the Interim Parenting Orders into which the parties had entered on 6th September 2010, saying that she had “had reservations”[4] about the orders because of:
…the difficulty of dealing with Mr Higgins, problems with communication, his lack of control of his temper, his violence and his possessive jealousy directed towards me.[5]
[4] Affidavit of Ms Higgins 14.6.2011 at [44]
[5] Ibid
The Mother deposed that on 14th February 2011 the parties’ daughter [X] was involved in “a violent altercation” with her father and, as a result, [X]’s relationship with her father had broken down and she was not currently spending any time with him.[6] She also deposed that on 16th February 2011 the Father arranged for the boys to stay with him at a time when they should have been with her and she received a text message from the older boy, [Y], saying:
“Dad will take [Z] to soccer. I’m going to stay with dad from now on because it is too hard for me. I’m sorry, I can’t handle this any more, love you”.[7]
[6] Ibid at [47]
[7] Ibid at [90]
[X] had not seen her father from 15th February 2011 on [Z] spent time with each party, moving between the two homes. After a child inclusive child dispute conference on 5th May 20121 the parties agreed that [Y] would live with his father and spend alternate weekend with her.
The Mother is living permanently with Mr F and deposed that she was pregnant to him. The baby was due at the end of 2011.[8]
[8] Ibid at [106]
In cross-examination, the Mother said that she was seeking that she and the Father should have equal shared parental responsibility for all three children. If [Y] were to refuse to live with her, she would encourage him to do so and explain why it was in his best interests. She believed that his father had influenced [Y] and had not shielded the boy from his emotions. As a result, the child feels sorry for his father. [Y] has been spending alternate weekends with her and did not seem to have a problem with that arrangement.
In cross-examination by Mr Rosic of counsel, for the Father, the Mother said that it was logical that [X] should continue her relationship with her paternal grandparents. She admitted that she had not done a lot to encourage that relationship. Her main focus had been to reconcile [X] with her father
The Mother said that she had started a relationship with Mr F in April 2010. He started “sleeping over” in April, initially when the children were not there. She did not inform the Father about the relationship until June 2010, but the children knew about in May. She conceded that [Y] may have resented her getting into a new relationship so soon after she had separated from his father.
The Mother said that there were problems about communicating directly with the Father, due to the Apprehended Violence Order that was then in force.
The Mother also conceded that she had no concerns about the Father’s supervision and care of the two boys. She said that it was important for [Z] and [Y] to live together. However, she did not agree that they should live with their father on a full-time basis because she did not believe he was able to shield them from his emotions.
Mr F deposed in his affidavit that he had started living with the Mother in February 2011 and confirmed that they were expecting a child in December 2011. He has no other children. He is looking for a long term relationship with the Mother. He deposed that he had a good relationship with the three children but he was not trying to be their father:
They have a father, and I am respectful of that.[9]
[9] Affidavit of Mr F 23 June 2011 at [8]
In cross-examination by Mr Fermanis, counsel for the Independent Children’s Lawyer, Mr F said that he was not the one who disciplined the children. He said that it was not his place to punish them but he was there to see that the mother’s rules were adhered to.
The Father deposed that the mother told him in late January 2010 that she wished to separate for some “time out” and would rent a home unit for 6 months. He deposed, contrary to the Mother’s evidence, that before she left they had consensual sexual intercourse at his request.
He deposed that he believed that the marriage was over on or about 24th June 2010 when the Mother told him that she had had sex with Mr F. He said to her:
“Our marriage is over. You have committed the ultimate sin. I’ve lost trust in you. You had sex with Mr F.”[10]
[10] Affidavit of Mr Higgins 15.7.2011 at paragraph [16]
Throughout his affidavit the Father set out instances of the way the Mother’s behaviour had, in his view, deteriorated, since January 2010. He described her as “drinking and partying” on a regular basis, leaving the children unsupervised, and allowing them to watch R rated films.[11]
[11] Ibid at [39]-[41]
The Father claimed that the Mother had had an inappropriate relationship with one [name omitted], a boyfriend of the parties’ daughter [X]. He also claimed to have been told that the Mother had had sexual relationships with other younger men.[12]
[12] Ibid at [54]-[55]
It was the Father’s evidence that after the child [Y] had commenced living with him on a full time basis, the younger boy, [Z], asked him if he could live with them as well.[13] He deposed that:
It is in the best interests of both [Y] and [Z] to make Orders that [Y] and [Z] live with me. [Z] can spend alternate weekends with the Applicant because this avoids unnecessary changeover and interruption of his schooling.[14]
[13] Ibid at [115]
[14] Ibid at [116]
In cross-examination by Mr Reeve, who appeared for the Mother, the Father said that he was “disgusted” by his ex wife’s past actions. He also criticised the Family Consultant who prepared, the Family Report, saying her body language was rude and he felt intimidated. He thought she was rude by her manner, her speech and her tone. He felt that she was rude and abusive towards him.
The Father said that he had a close relationship with [Y], who did not mention his mother at all.
The Father stated that he was a person who felt his emotions strongly. He would walk around upset. He was most critical of the Mother. When asked if he could think of anything good about the Mother he replied:
“I don’t know her”.
In cross-examination by Mr Fermanis for the Independent Children’s Lawyer, the Father reiterated that he could be “an emotional guy”. However, he denied that he had a problem with his emotions and said that he had arranged a meeting with his former therapist, [name omitted].
The Family Report
A Family Report was prepared under the provisions of s.62G of the Family Law Act by a Family Consultant at this Registry, Ms B. The Report was completed on 18th July 2011 and released to the parties on 20th July.
For the purposes of the Family Report, the Family Consultant interviewed the following:
a)The Mother;
b)The Father;
c)Each of the three children; and
d)Mr F.
She observed the children’s interactions with the adults informally, and then observed all three children with the Mother and Mr F. She also observed [Y] and [Z] with their father.
[X] was not observed with her father. The Family Consultant noted that [X] has had no direct contact with her father since the interim Apprehended Violence Order was made and that the parties had agreed, at least on an interim basis, that [X] would live with her mother and spend time with her father according to her wishes.
Issues Identified by the Family Consultant
The Family Consultant identified the following issues, correctly, in my view:
· Where [Y] and [Z] will live and how they will spend time and communicate with each of their parents
· The children’s views and the weight that should be placed on their views
· Separation of siblings
· The nature of (the) relationship between the subject children and between the children and each of their parents…
· No parental communication, the ongoing parental conflict, the hostile parental relationship and the impact of this on the children
· Parental responsibility
· [X]’s and [Y]’s mental health[15]
[15] Family Report page 6 at [15]-[16]
In her evaluation, the Family Consultant noted that the Father appeared to be convinced that the Mother was irresponsible and immoral, whilst he perceived himself to be the victim and the person who was essentially more in tune with the children’s needs, especially the two boys. There were no indications that the Father reflected upon any contribution that he might have made towards the parties’ relationship problems and the conflict between them. She went on to say:
The level and intensity of Mr Higgins’ emotional response towards the mother…also raises concerns about his ability to reflect on the children’s experiences of the separation as separate from his own and to present the children with a balanced view of their mother.[16]
[16] Family Report page 25 at [76]
As to the Father’s relationship with his daughter, the Family Consultant noted that:
Mr Higgins appears unable to accept the responsibility of his own actions as in any way contributing to the damaged father-daughter relationship and, although visibly distressed by the current situation and the AVO, he demonstrated little ability to emphasise with [X] or place her behaviour in a developmental context. This raises doubts as to the potential for his relationship with [X] to be easily repaired and rebuilt in a sustainable way.[17]
[17] Family Report page 27 at [80]
By comparison, the Family Consultant stated that there was nothing to suggest any significant deficiencies in the Mother’s parenting capacity or her ability to meet all of the children’s needs appropriately and sensitively:
Throughout her interview she repeatedly demonstrated the ability to reflect on things from alternative perspectives and demonstrated considerable empathy when considering what either the children or the father might be going through.[18]
[18] Ibid at [75]
The Family Consultant stated that it was important for the three children to be given the opportunity to form their own views about each of their parents. It was also very important for their long term psychological stability that they should be actively supported to maintain a relationship with each other, each parent and their extended paternal and maternal families. They needed to be better shielded from derogatory remarks or negative views that their parents might have about each other.
The Family Consultant described [X] as feeling a sense of rejection by her father and has identified with her mother. [Y], on the other hand, “strongly identifies with the father and appears to have developed an enmeshed relationship with his father”.[19] [Z]’s desire and need is to spend time with each parent was consistent with his developmental needs:
He would clearly benefit from continuing to spend time with each parent.[20]
[19] Ibid at [83]
[20] Family Report page 28 at [83]
However, the Family Consultant cautioned that an arrangement where [Z] continued to spend equal or substantial and significant time with both parents was not practical or appropriate. She warned:
Shared parenting requires, among other things, good parental communication and a high level of co-operation. Mr Higgins and Ms Higgins have not demonstrated the ability to communicate and co-operate about the day-to-day decisions necessary for them to adequately support [Z] as he moves and lives between two households or to shield him from the considerable difficulties (that) exist in the parental relationship. The difficulties the parents experience in being able to constructively discuss the day to day issues that arise for [Z] will heighten the effects of inter-parental tension and contribute to poorer outcomes for him. [Z]’s awareness of the fractured nature of the parental relationship combined with his concern for his parents’ wellbeing could make him even more vulnerable to the ill-effects of parental conflict.[21]
[21] Ibid at [84]
The Family Consultant’s Recommendations
The Family Consultant recommended that:
a)[X] should live with her mother and spend time with her father in accordance with her wishes;
b)[Y] should live with his father and spend time with his mother:
i)Each alternate weekend from Friday afternoon until Sunday evening (to coincide with weekends when [Z] is with his mother); and
ii)At other times in accordance with his wishes and by agreement
c)[Z] should live with his mother and spend time with his father:
i)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday (to coincide with weekends that [Y] is with his father);
ii)Half of all school holiday periods; and
iii)Other times by agreement;
d)[Z] may benefit from participating in the Unifam Connect Kids program or similar;
e)The parties should support [X] to continue to utilise the therapeutic options available to her and facilitate her attendance at counselling;
f)The parties should organise for [Y] to attend upon an appropriate adolescent counsellor or therapist in respect of his mental health;
g)The Father should engage in individual counselling to support him to manage his feelings around the Mother and to be better able to support the children;
h)The parties should independently of one another participate in an appropriate parenting after separation course;
i)The parties should be restrained from using any of the three children as message carriers; and
j)The parties should be restrained from discussing the proceedings with the children or showing them documents or correspondence in relation to the proceedings.
The Family Consultant gave oral evidence. She denied that she had been rude and abusive towards the Father. She said that she did challenge him to think about things from other people’s perspectives. She said that she did “tell him off” at the Child Inclusive Child dispute Conference because she was surprised at the manner in which he behaved in the waiting room. He was not shielding the children from his emotions. It was a difficult time for them.
Ms B expressed the view that [Y] would be “tuned in” to the lack of respect that the Father has for the Mother. He has, she said, an enmeshed relationship with his father. Nevertheless, she would have concerns about a change of residence for [Y].
In cross-examination by Mr Fermanis, Ms B said that [Y] was very aware of his father’s feelings and his father’s need for [Y] to want him and need him. “He loves his Dad”. Concerningly, she said that [Y] did not present the way she would expect a normal fourteen year old boy to present. Both parents should consider therapeutic intervention.
Ms B said that she would have concerns about [Z]’s ability to maintain a relationship with those he loves if he were to live with his father. [Y] has taken on his father’s fight. He might attempt to influence [Z] to come over to his way of thinking.
[X] was not alienated from her father. She was desperate to know that her father loved her.
The Relevant Law
In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child or children concerned as the paramount consideration.
The Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
The primary considerations are set out in paragraphs (a) and (b) of subsection 60CC(2). They are:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A recent amendment to the Family Law Act gives greater weight to the need to protect the child from harm. Subsection 60CC(2A) states:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
There are additional considerations set out in subsection 60CC(3) of the Act.
However, subsection 60CC(5) provides that if the court is considering whether to make an order with the consent of the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child or children concerned for the parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in abuse of the child or children or family violence (see s.61DA(2)). The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the child or children’s best interests.
It is also relevant that s.61DB provides that when making a final parenting order the Court must disregard the allocation of parental responsibility made in any interim order.
Where a court has made a parenting order that provides for a child’s parents to have equal shared parental responsibility, subsection 65DAA(1) requires the court to considers whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each of his or her parents.
However, where a court does not make an order for the child to spend equal time with each parent, subsection 65DAA(2) requires the court to consider whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
It has been held by the High Court in MRR v GR[22] that:
Section 65DAA(1) is expressed in imperative terms…It is only where both questions are answered in the affirmative that consideration may be given, under para (c) to the making of an order.[23]
[22] (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220; [2010] HCA 4
[23] (2010) 42 Fam LR 531 at 535 [13]
Subsections (1) and (2) of s.65DAA are both subject to s.65DAA(6), which provides that:
If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
In having regard to the evidence and submissions and making the Orders that I propose to make, I have considered all of the above matters, where they are relevant.
Conclusions
It goes without saying that the best interests of the children are the paramount consideration, but in this case it is clear that what is in the best interests of one child may not necessarily be in the best interests of another. For example, the circumstances relating to [X] are different from those that apply to her two brothers, and it may not be the case that an arrangement that is in the best interests of one boy is necessarily in the best interests of the other.
In this case, the parties both seek an order providing that they will have equal shared parental responsibility for the three children. In those circumstances, it is appropriate to apply the presumption set out in subsection 61DA(1) that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
There was no contest between the parties that [X] should live with the Mother, and, at least until the Apprehended Violence Order was no longer in force, she should spend time with her father in accordance with her wishes and by agreement between the parents.
The written submissions by the Father’s counsel set out this description of the outcome of the proceedings against the father at [omitted] Local Court:
On 8 August 2011 the charges of intimidation against the father (in respect of the incident of 14 February 2011) were dismissed following hearing at [omitted] Local Court…The father consented to the adjournment of the ADVO application for 6 months with interim orders without admission in statutory order 1(a) (b) and (c) only.
No objection was taken to the provision of this information to this Court.
The evidence indicates that the only order that is in [X]’s best interests is that she should continue to live with her mother. There is no family violence order in force that would preclude communication between the Father and his daughter, and it would have been possible for the Father to have acknowledged such an event as [X]’s 16th birthday without breaching the interim order, had he chosen to do so.
It also seems clear that the Court should order that [X] should spend time with her father according to her wishes and as agreed between her parents. This falls short of either equal time with each parent under s.65DAA(1) or substantial and significant time with the father under s.65DAA(2). However, I am not satisfied that either order would be in [X]’s best interests or reasonably practicable.
The fact that the parents each sought Orders to that effect, even though they did not sign Minutes of Consent orders, enables the Court to apply the provisions of s.60CC(5) and s.65DAA(6) and not to have regard to all of the matters in s.60CC(2) or (3) or s.65DAA(1) or (2). However, I take into account the fact that [X] is now seventeen years of age and I have had regard to her views as set out in the Family Report.
I accept the recommendation of the Family Consultant set out in paragraph 89 of the Family Report.
It is clear that the situation relating to the two boys, [Y] and [Z], is very different. The Court must consider the matters in subsections 60CC(2) and (3) and must follow the guidelines set out by the Act in subsections 65DAA(1) and (2).
I am satisfied that it is not in the best interests of either [Z] or [Y] to spend equal time with each parent or to spend substantial and significant time with each one of them. It does not appear to be reasonably practicable in either case, given the poor level of communication and the hostility between the parents as set out by the Family Consultant in paragraph 84 of the Family Report.
In dealing with the parenting orders for these two boys, I have considered the matters set out in s.60CC of the Act.
In having regard to those matters, I have considered the evidence given by each party. From my contemporaneous notes, the Mother appeared to be an honest witness and, on occasions during her cross-examination by Mr Rosic of counsel, made admissions against interest.
The Father was a less impressive witness. From my contemporaneous notes, he clearly attempted to avoid answering questions that were unpalatable during his cross examination by Mr Reeve on the morning of the second day of the hearing. He appeared to be unable to say a single positive thing about his former wife.
Mr F appeared to give honest answers during his relatively brief cross examination. With respect, he was a witness of significantly less importance than either the Applicant or the Respondent. There was no suggestion that he posed any risk of harm to any of the three children and he appeared to be supportive of the Mother in her role as mother without seeking to usurp the position of the children’s father.
Whilst the Father expressed a negative opinion of the Family Consultant, Ms B, that was not the impression that I gained from her evidence, which I found to be helpful and unbiased.
It is of benefit to each of the children to have a meaningful relationship with both of their parents. This was conceded by the Mother in her evidence and was set out very clearly by the Family Consultant, both in her evidence and in the Family Report.
The Court must consider the need to protect the children from physical or psychological harm from abuse, neglect or family violence (see paragraph 60CC(2)(b)). There was a family violence order that applied to the Father for the protection of the Mother and [X] but it is apparently no longer in force (see also s.60CC(3)(k)). It did not apply to either [Y] or [Z].
It should also be mentioned that there was evidence of an incident where [Z] was bitten by Mr F’s dog, named “[omitted]”. This appears to have been a minor injury as a result of a comparatively minor incident which does not pose any ongoing unacceptable risk to either [Y] or [Z].
The views of the children come from the Family Report (s.60CD(2)). [Y], who is now fifteen years old, made it clear that he loves each of his parents.[24] He spoke positively of the time he had spent in his mother’s care since the Child Inclusive Conference but was firmly of the view that he wanted to live primarily with his father. He did not feel favourably towards any type of equal or shared care arrangement applying to him.
[24] Family Report page 21 at [63]
[Y] is of an age where his views should be given some weight. The Family Consultant has stated that [Y] “has expressed a clear preference to live predominantly with his father”.[25]
[25] Ibid at [85]
[Z] is younger, now being aged ten years and eight months. He stated that he loves both parents:
He spoke positively of time spent in each household. [Z] feels very favourably about being able to spend regular and frequent time with each of his parents and wants both parents to remain involved in his day to day life.[26]
[26] Ibid at [69]
I propose to give some weight to his views.
The boys appear to have a loving relationship with each parent. [Y] appears, from the Family Consultant’s evidence, to be “enmeshed” with his father and has made it clear that he prefers to live with him.
There has been very little evidence about the children’s relationships with their grandparents, except that they appear to be positive. The children were to have a new half-sibling as a result of their mother’s pregnancy, but that child was still en ventre sa mere at the date of hearing.
Each parent wants to spend time with each of the boys. Indeed, each parent wants an order that both boys should live with them.
There was no evidence at the hearing about the extent to which either parent had fulfilled, or failed to fulfil, an obligation to maintain the children.
The likely effect of any change to the children’s circumstances if separated from either parent is an important issue. [Y] is firmly opposed to an order that he should live predominantly with his mother. He has been spending time with her but wants to live with his father. The Family Consultant gave evidence that she would have concerns about a change of residence for [Y].
[Z] is in a different situation. The Family Consultant has recommended that he should live primarily with his mother whilst still spending time with his brother. She said in her evidence that she would have concerns about [Z]’s ability to maintain his relationships with those whom he loves if he were to remain living with his father. There would be a risk that [Y] would attempt to influence to support the Father’s cause.
The evidence makes it clear that it would not be in [Y]’s best interests to live primarily with his mother, but the same cannot be said for [Z].
The practical difficulty of the children spending time with one or other parent arises not from geographical or cost issues but from the hostility between the parents and their inability to communicate.
On the evidence, the mother appears to have the capacity to provide for the children’s needs, including emotional and intellectual needs. The Father appears to be unable to separate his own emotional needs from those of his children, portraying himself as the victim of an immoral woman whilst being unable to accept that his behaviour has in any way contributed to the breakdown of the parental relationship.
The children are a girl aged 17 years and two boys aged 15 and 10. Their father is of Greek background but they have apparently lived in Australia all their lives.
The attitude to the children of each parent is different. The Mother accepts that the boys need to spend time with their father and develop a positive time with him. The Father appears unable to shield the children from his emotions and appears unable to understand that this is not to the children’s benefit.
The issue of family violence and the family violence already been dealt with.
It would be preferable to make the order that would be least likely to lead tot the institution of further proceedings in relation to the children. If [Y] were ordered to live primarily with his mother he would be unlikely to respond favourably. The reality appears to be that it is better to make an order that [Y] should remain living with his father.
[Z], on the other hand, should live primarily with his mother. The hostility and lack of communication between the parents makes a shared care arrangement unworkable and not in [Z]’s best interests. If [Z] were to remain living primarily with his father this, too, would not be in his best interests. The risk of his losing his relationship with his mother and sister is too great.
Further Submissions
Production of this judgment has been unfortunately delayed due in part to my recent illness and periods of hospitalisation. Whilst there have been recent interim applications by the Mother relating to financial matters, which are due to be the subject of a final hearing in September, neither party has sought to reopen the parenting proceedings. Nevertheless, as I did in Langan & Thurston[27], I will offer the parties the opportunity to make submissions about any circumstances that may have arisen since the hearing concluded.
[27] [2012] FMCAfam 345
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 August 2012
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