HUTTON & TIPPINS
[2016] FCCA 3258
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUTTON & TIPPINS | [2016] FCCA 3258 |
| Catchwords: FAMILY LAW – Parental responsibility – where family violence conceded by both parties renders the presumption of equal shared parental responsibility inapplicable – where both parties nonetheless sought that equal shared parental responsibility be allocated to them – parties to have equal shared parental responsibility – child to live with the mother – child to spend substantial and significant time with the father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA(2) |
| Applicant: | MR HUTTON |
| Respondent: | MS TIPPINS |
| File Number: | MLC 7597 of 2015 |
| Judgment of: | Judge McNab |
| Hearing dates: | 14 November 2016 & 15 November 2016 |
| Date of Last Submission: | 18 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose of Counsel |
| Solicitors for the Applicant: | MNG Lawyers PTY Ltd |
| Respondent in Person |
| Counsel for the Independent Children's Lawyer: | Ms Swann |
| Solicitors for the Independent Children's Lawyer: | Glezer Lanteri & Associates |
ORDERS
That all previous parenting orders be discharged.
That the Mother and Father exercise equal shared parental responsibility for the child of the relationship X (“the child”) born (omitted) 2013.
That the child live with the Mother.
The Father spend time with and communicate with the child as follows:-
(a)In one week from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to childcare or her early learning centre.
(b)In week two from 9:00am Saturday to 4:00pm Sunday.
(c)For a 5 day block in January 2017 as agreed or failing agreement from midday 1 January 2017 to midday 5 January 2017.
Commencing the first week in March 2017:
(d)In week one from 5:30pm Friday to 4:00pm Sunday;
(e)In week two from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to childcare or her early learning centre.
(f)For a one week block in January 2018 as agreed and failing agreement from midday 1 January to midday 8 January 2018.
Upon X commencing school, upon the commencement of Term 2 of that year:
(g)In week one from 5:30pm Friday to the commencement of school on 9:00am Monday (or Tuesday if Monday is not a school day).
(h)In week two from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to school.
(i)One half of each of the school term holidays as agreed and failing agreement the first half;
(j)One half of the long summer holidays, being alternating weeks for the first two years of X being at school and thereafter alternating as to the first and second halves with the Father to exercise time in the second half in first year of operation.
In addition to the above the Father spend time as follows:
(k)From 4:00pm Christmas Eve to 4:00pm Christmas Day in the year 2017 and each alternate year thereafter;
(l)From 4:00pm Christmas Day to 4:00pm Boxing Day in the year 2016 and each alternate year thereafter;
(m)In the event that the child’s Birthday falls on a day that the Father would normally spend time, for not less than three hours, on such day at times to be agreed and failing agreement, from 3:30pm to 7:00pm on a weekday or 1:00pm to 5:00pm on a weekend day;
(n)In the event that Father’s Birthday is not a day that the Father would normally spend time, for three hours on the Father’s birthday at times to be agreed and failing agreement, from 3:30pm to 6:00pm on a weekday or 1:00pm to 5:00pm on a weekend day;
(o)In the event that Father’s Day is not a day that the Father would normally spend time, from 5:00pm Father’s Day eve to 4:00pm Father’s Day;
(p)From 4:00pm Easter Sunday to 4:00pm Easter Monday in the year 2017 and each alternate year thereafter;
(q)From 4:00pm Easter Saturday to 4:00pm Easter Sunday in the year 2018 and each alternate year thereafter;
(r)In the event that X's Birthday falls on a day that she would not normally spend time with the Father, for not less than three hours on X’s birthday at a time to be agreed and failing agreement, from 3:30pm to 7:00pm if the birthday falls on a weekday or 1:00pm to 5:00pm if the birthday falls on a weekend day.
(s)on not less than one occasion per week via telephone/video call/ or Skype on a day and time to be agreed between the parties and failing agreement between 6:30pm–7:00pm. The Mother to facilitate and provide privacy for such communications; and
(t)such further and other times as may be agreed to in writing between the parties.
That the Father’s time as referred to in paragraph 4(g) and (h) above be suspended:
(a)during school holiday periods;
(b)on Mother’s Day from 5:00pm Mother’s Day eve to 4:00pm Mother’s Day;
(c)on the child’s and the Mother’s Birthday for the same time periods as specified above for the Father to see the child on those days, in the event such days fall on days the child is in the Father's care.
(d)on (omitted) Easter, with the Mother to provide make-up time in the event that it falls during the Father’s time with the child.
That the Mother be at liberty to communicate with the child via telephone/video call/Skype, on one occasion during weekend time and twice during school holidays. The Father is to facilitate and provide privacy for such communications.
Changeovers are to occur at Early Learning, Kindergarten or school (as may be applicable) and otherwise at a McDonalds Family Restaurant as close to a mid-point between the parent’s respective homes or an alternate venue as may be mutually agreed in writing from time to time. The parents are to advise the other in the event that an agent will undertake changeover.
That both parties forthwith advise and keep the other advised as to:-
(a)The name and address of any health professionals of the child;
(b)Except in an emergency, or in the case of the need for urgent treatment, advise the other 7 days in advance of any medical appointments and the purpose of such appointment via email, letter or SMS text message; and
(c)Authorise and direct the child’s child care providers, schools and any and all health professionals to provide any information that parents might normally be entitled to receive from time to time as requested such parent, and each party is at liberty to attend upon health professionals and parent teacher interviews at their own time and expense other than when the other is present or jointly if so agreed.
That the Mother and Father each advise the other as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of:-
(a)any significant injury or illness affecting the child;
(b)any illness requiring the provision of any medication prescribed by a medical Practitioner; and
(c)any hospital attendance by the child.
That the Mother do all things necessary to authorise the Father and to keep the Father authorised to receive information at the expense of the Father copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent and that the Father be permitted to attend the children’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the child participates in.
That each party keep the other advised as to their and if relevant the child’s residential address, landline and mobile telephone numbers and email addresses and notify the other of any change to such details within 24 hours of such change.
That the Mother and Father together with their servants and agents be and are hereby restrained from:
(a)denigrating the other to and in the hearing of the child or allowing another to engage in such conduct; and
(b)discussing family law matters with the child, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them.
That the parties utilise a Communications Book detailing information pertaining to the child’s health, education, social activities and shall move with the child between households.
That both parents are to ensure that each of them is provided with a copy of any medical assessment/treatment plan with respect to the child and both parents are to follow the directives of treating health professionals as may be recommended by them.
That the parents forthwith enrol in and complete a post separation parenting course and provide evidence of completion to the other or their legal representative.
That the Mother engage with a psychologist/counsellor to support her in exercising a joint parenting regime with the Father and to support X in developing her relationship with the Father and such psychologist/counsellor be provided with a copy of Dr T and Ms L’s reports for this purpose.
The Father be restrained from:
(a)consuming alcohol whilst X is in his care for a period of 2 years from the date of these orders;
(b)thereafter, being intoxicated to the extent of having a blood alcohol content in excess of .05 per centum while X is in his care.
That the Father take the child to her scheduled activities whilst she is in his care, provided he was consulted by the Mother about such activities at the time the child was enrolled in them.
The Independent Children’s Lawyer be discharged.
In the event the parties cannot reach a joint decision about:
(a)a major long-term issue involving the children; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders which involve the children,
each of the parties will do all things necessary to enrol and participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act1975 (Cth) and that before an Application is made to a court for a variation of these Orders, each of the parties shall each do:
(e)all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act1975 (Cth); and
(f)Participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act1975 (Cth).
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hutton & Tippins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7597 of 2015
| MR HUTTON |
Applicant
And
| MS TIPPINS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the best interests of X (“X”) born (omitted) 2013 (aged 3 years).
The parents of X, Mr Hutton (“Mr Hutton”) and Ms Tippins (“Ms Tippins”) met in (omitted) 2010 and commenced living together in (omitted) 2011. The parties separated briefly in 2011 and on 26 January 2015, but reconciled with the final separation arising from a family violence incident on 12 July 2015.
In this matter, each of the parties acknowledges that family violence has occurred. However, the Independent Children’s Lawyer submits that an order for equal shared parental responsibility would be in X’s best interests and it is therefore appropriate for the presumption of equal shared parental responsibility pursuant to s.61DA(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) to not be rebutted and apply to this case.
The Court has to consider with whom X should spend equal time or substantial and significant time with, in the circumstances pursuant to 65DAA of the Act.
The orders sought by the parties are set out in the table attached and marked “A”.
The Evidence
The father relied upon the following documents:
a)case outline filed on 18 November 2016;
b)affidavit sworn 12 August 2015;
c)affidavit sworn 3 January 2016;
d)affidavit sworn 24 June 2016.
The mother relied upon the following documents:
a)affidavit sworn 4 September 2015;
b)affidavit sworn 3 December 2015;
c)affidavit sworn 3 December 2015;
d)affidavit sworn 9 February 2016;
e)affidavit sworn 24 March 2016;
f)affidavit sworn 27 May 2016;
g)response filed 14 July 2016;
h)affidavit sworn 25 July 2016;
i)affidavit sworn 8 November 2016.
The parties and the Independent Children’s Lawyer also relied on:
a)affidavit of the single expert consultant psychologist, Dr T (“Dr T”), sworn 9 November 2016;
b)Child Dispute Conference Memorandum to Court dated 13 October 2015;
c)the Family Report released 27 October 2016.
The Issues
The Court must consider appropriate parenting arrangements to be made in light of the allegations of family violence, the clear difficulties the parents have in communicating with each other and their inability to make joint decisions. The mother seeks orders that she have sole parental responsibility and the Independent Children’s Lawyer and the father seeks an order for equal shared parental responsibility.
The Court must also consider how much time the father is to spend with the child, noting that neither parent contends that orders for week about time are appropriate. The Court must also consider what orders can be made in respect of therapeutic or individual counselling in order to assist them in their ongoing care of X.
The Proceedings
Family violence claims made by the mother
In the mother’s affidavit of 4 September 2015, she gave evidence that she met the father through work in (omitted) 2010 and that he subsequently moved into her home after their relationship commenced. She relates an incident where the father danced inappropriately with a woman at a work Christmas party. In embarrassment, she left and returned home. The father came home and allegedly strangled her until she started to gag, before letting her go.[1] She said that he attempted to justify his behaviour by saying that he was humiliated in front of his colleagues by her leaving the party without letting him know. She deposed to feeling scared that he would kill her as he was trained in (omitted) when he was stationed in (country omitted) as part of the (employer omitted).
[1] Affidavit of the mother 4 September 2015 at [6]
She fell pregnant with X in (omitted) 2012 and contends in her evidence that the father had been inconsistent with his financial contributions, had lied to her on several occasions, travelled overseas for work without advising her of his schedule and he consumed alcohol excessively leading to arguments.[2] After attempting relationship counselling and being unable to resolve issues, they separated in January 2015. The mother claims at [16] of her affidavit that the father became physically abusive when she insisted that he move out and that he had grabbed her by the arms and threw her on the couch.
[2] Affidavit of Ms Tippins sworn 3 November 2016
The parties made an attempt at reconciliation and went on a family holiday to (country omitted) from 27 May 2015 to 5 June 2015.
There was an incident on 12 July 2015, where an argument arose over money, in particular an alleged failure on the father’s part to pay child support, or money for X’s future. The mother alleges that she told the father that the relationship was permanently over and asked the father to return her house keys and car keys. She said that he shoved her against the wall and hit her, causing her lip to bleed. She then states at [20]:
“I stood up and watched in shock as he started hitting and scratching himself, punching the walls and shouting for help calling out ‘(omitted)’, my neighbours name to create the impression I was assaulting him.”
The mother locked the father outside the house, the father called the police and she was arrested. An Intervention Order was obtained against the mother. The mother sought and obtained an order against the father pursuant to the Family Violence Protection Act 2008.[3] The father returned X to the mother the next day and was unable to see her from that day in July until he obtained a Court Order in October 2015.[4]
[3] See affidavit of the father sworn 12 August 2015 at [49]
[4] See affidavit of Dr T sworn 9 Nov 2016
On 8 November 2016, the mother filed what she referred to as an amended affidavit which was in part in the same form as the affidavit sworn 4 September 2015. Paragraph 2 of the amended affidavit is effectively the same as the affidavit sworn 4 September 2015, but includes additional paragraphs from [53] through to [113] and has amended orders sought. Paragraph 52.2 of that affidavit provides:
I refer to paragraphs & (sic) and 8 of Mr Hutton's Affidavit and refer to paragraph 6 wherein I refer to the Christmas party and the manner in which Mr Hutton behaved at the party and upon coming home and discovering me in bed. I deny that I punched him with closed fists in the back of the head. At the party that evening, another woman Ms D approached Mr Hutton at the party and told him to stop embarrassing me in public. I actually went home from the party with Ms D and told her the next day of what happened when Mr Hutton had come home late that night drunk and had choked me. Now produced and shown to me and marked with the letters “T – 3” is a copy of an email chain between Mr Hutton and I dated 12 February 2015.
A text message referred to states in relevant parts:[5]
[5] Exhibit “T-3” of Affidavit of Ms Tippins sworn 4 November 2015.
you touched up another girl in front of me Mr Hutton and then you choked me to the point of (illegible)
Go to hell
At [103] – [105] of the same affidavit, the mother states:
103.Due to Mr Hutton wiping my phone clean and getting rid of all evidence on my phone of prior abuse where he apologises profusely for his actions each time, I panicked and made a mistake when filing my original affidavit response.
104.I doctored an email I had between Mr Hutton and myself. The content of the email was as per the annex ed document, however I added the words “choking me to the point of gagging”.
105.I stupidly did this as I knew in my prior emails there were emails with this content however due to Mr Hutton deleting everything I was unable to locate it. I was not thinking straight at the time and the disbelief at what he did with the police on the night of 12 July 2015 pushed me to doctor the email.
The mother alleges that:
a)the father has engaged in family violence;
b)the father has a drinking problem such as to impact on his capacity to responsibly parent;[6]
c)the child is too young to spend additional time with the father;[7]
[6] Affidavit of Ms Tippins dated 8 November 2016 at [56]
[7] Affidavit of Ms Tippins dated 8 November 2016 at [57]
The mother makes numerous allegations of the father been dishonest and essentially lacking the qualities required of a good parent.
The father gave evidence by his affidavit of numerous examples of family violence which was said to have been instigated by the mother. Without reciting each and every allegation, in essence he describes the mother as a volatile person who is prepared to resort to violence against him and has done so throughout the relationship.
He gave a significantly different version of the events of 12 July 2015. In essence, he said that an argument commenced after the parties started talking about what the father had been doing with his money since separation. He says that the argument escalated when he went to leave the house. He described being the subject of an attack from the mother, where she started punching him in the face with closed fists. The police were called by the father. The affidavit of the father of 12 August 2015 describes the situation in the following terms at [41]:
41.I then walked out the gate and called the police. After about 10 minutes the police arrived. I told them what happened and asked them to check on X. I also told them I wanted to take my laptop and dog.
42.They took a few pictures of my face and I stayed with one police officer whilst the other went to see Ms Tippins.
43.Meanwhile Ms Tippins was shouting at the police through the door. Finally Ms Tippins opened the front door (to allow the dog out) the police ran in, pushed her on the floor and arrested her. The police took Ms Tippins away.
44.I entered the house and went into the main bedroom with X was sitting on the bed watching her I Pad….
The father returned X to the mother the following day with the assistance of the mother’s sister.
A difficulty that arose in this proceeding was that the mother placed a very significant emphasis on the written report of a family consultant who interviewed the parties and prepared a report dated 13 October 2015. In the family report, the family report writer has gone well beyond taking out the respective narratives of the parties and has effectively entered into the fray of this case as a finder of fact. In my view, by the report writer embarking on the exercise of effectively being a finder of fact and then making recommendations on the basis of concluded findings, it has led to considerable difficulties in the management of this proceeding. It is significant that at the conclusion of page 2 of the report, the report writer stated:
…
· A family violence safety notice issued 12 July 2015 identified Ms Tippins as “…intoxicated” and raised concern about the mother’s capacity to care for the child. Both parents acknowledge situational couple violence, at that time, and that Ms Tippins was ‘…hysterical” when Mr Hutton wished to leave the family home and resisted arrest when Police arrived.
· In interview it is apparent that this family violence event has not been represented accurately. Whilst it is an example of situational couple violence with both parents engaging in a physical and verbal dispute, the relevant size of the parties and Mr Hutton’s subsequent conduct raise considerable concerns.
The report writer then purported to analyse the evidence in a conclusive way and made a finding of fact at the second dot point on page 3 as follows:
· Mr Hutton provided conflicting information about the possibility of Ms Tippins being charged as a consequence of this event and to date he has not sought to redress with Police inaccurate impressions about his role in this family violence incident.
Without reciting the whole of the report, at the penultimate page of the report (the third bottom dot point), the report writer states:
· In addition to the above the following issues are recommended:
Mr Hutton has agreed to attend (omitted) Police Station and acknowledge that the events of 12 July 2015 were not as reported and that no charges should proceed.
As stated above, the recommendations made by the report writer and in particular the statement that the father had misrepresented his role in the events of 12 July 2015, assumed great significance for the mother, who was regularly tearful in her evidence by reason of what she says was the father’s failure to do what he allegedly agreed to do, that is to attend (omitted) police station. The mother made frequent reference to and placed considerable reliance on the alleged “agreement” to attend the (omitted) police station.
The father denied making any such agreement to attend the (omitted) police station for the purpose of stating that he had effectively made a false report of family violence in relation to matters of 12 July 2015. He gave oral evidence that he agreed that he would go to the police station to enquire whether charges could be withdrawn. That evidence confirms correspondence from his instructing solicitor to the mother’s then instructing solicitor dated 26 November 2015.[8]
[8] Exhibit “T2”the affidavit of the Ms Tippins sworn 3 December 2015.
On the basis of the evidence that I have heard and read, I am not persuaded that the father agreed to attend the (omitted) police station to acknowledge that the events of 12 July 2015 were not as reported. In my view, the family report writer was not in a position as a result of the material that she had before her to make any concluded finding in relation to what occurred on the night of 12 July 2015. The difficulty faced by the report writer is that she saw the parties for a relatively brief time and had access to affidavit material which was then filed.
By the mother’s own admission, the affidavit material that she filed included allegations which involved creating and doctoring documents. There was no evidence provided to the report writer that was independent, such as a police report or a consultation with any of the police who were present on the evening of 12 July 2015. The report writer was not in a position to make findings of fact such as she did. The force with which she did so, after the short time that she saw the parties, to some extent undermined the usefulness of her report in this proceeding as a means of assisting the parties.
The Court had the benefit of a family report dated 25 October 2016 prepared by Ms L. The family consultant Ms L had the benefit of access to subpoenaed material from the Victoria Police and a psychologist consulted by the father by the name of Ms Y. In relation to the events of 12 July 2015, Ms L states at [9]:
The parents’ allegations regarding the events of that evening have been well documented in their affidavit material. Following a physical altercation (the instigator of which is disputed by the parents), Mr Hutton contacted the police, who later made the decision to arrest Ms Tippins. X spent the night with Mr Hutton who returned her to Ms Tippins the following morning. On 14 July 2015, Victoria Police issued an intervention order against Ms Tippins, naming Mr Hutton and X as protected persons. Ms Tippins made a cross application for an intervention order against Mr Hutton, naming herself and X as protected persons.
Review of the subpoenaed material from Victoria Police indicates that the record of the incident of 12 July 2015 aligns with the version of events reported by Mr Hutton. Records would seem to indicate Ms Tippins was noted to be intoxicated upon police attendance and was arrested due to her uncooperative and aggressive behaviour towards police and concerns regarding her ability to care for X within the context of her presentation. She was charged with assault and intentionally/recklessly causing injury; charges which were later discharged.
In my view, Ms L conducted a measured assessment of the material that was before her and succinctly records the material that was before her without purporting to make any finding or reach a final conclusion in relation to those particular events.
The report of Ms L summarises the psychiatric evidence produced by Dr T, who provide a report dated 29 September 2016. She notes at [16]:
Dr T concluded, amongst other things, that Ms Tippins has an Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation in partial remission”. He noted that, “At interview, it was evident that this Ms Tippins’ experience and perception of Mr Hutton continue to impact on her attitude and perception of X’s relationship with him (p.15) and “… risk lies in Ms Tippins’ fear and loathing of Mr Hutton with the resultant negative perception of Mr Hutton and difficulty in supporting a relationship between X and her father as a result” (p.15). Dr T concluded, in regard to Mr Hutton, that he did not present with symptoms of a psychiatric condition or a personality disorder but suggested he may have underestimated the impact of his alcohol use on his behaviour and that “To the extent that there are concerns in regard to Mr Hutton, these would be in the area of his personality functioning and such a diagnosis would depend on the sifting of evidence, and question of risk regarding Mr Hutton would follow from that”. (p. 15).
At page 29 of the report, the family consultant made the following recommendations, that:
·X live primarily with the mother.
·X spend time with the father for two single overnight periods each week, to be increased to two consecutive nights each week after no longer than three months and consideration to a further increase to 5 nights per fortnight in mid-2017.
·The parents to engage in a therapeutic process with a practitioner skilled and experienced in family law.
·Mr Hutton to refrain from alcohol use while X is in his care.
·The parents be restrained by court order from discussing issues pertaining to their dispute with X, or exposing X to information regarding this dispute.
·Permission be given to the parents to release this report to any therapeutic practitioner engaged to work with the family.
The recommendations made by Ms L have, to some extent, been embraced by the Independent Children’s Lawyer as a recommended course.
In relation to the recommendation by the family consultant in relation to the father’s restrain on alcohol consumption, the Independent Children’s Lawyer noted by footnote 8 to the minute of the proposed orders submitted by her that:
The ICL accepts that a complete restraint on alcohol consumption in final orders may be onerous in this case. The Father’s evidence was that he would agree to the “blanket” restraining order being in place for the next two years, which the ICL submits is appropriate, bearing in mind X’s age and the Mother’s concerns, which the ICL shares to some degree.
Consideration
This proceeding, both in terms of the written and oral evidence, was marked by the very obvious and high level of dysfunction between the mother and father. A significant feature of this case was the palpable enmity directed from the mother towards the father. She said in Court, “everybody knows that I hate her father.” Given one can expect that Ms Tippins would, as an intelligent person, seek to present herself to the Court in the best light, the Court assumes that her conduct out of Court and the language she employs is more extreme.
The mother admitted sending copies of the family report prepared in 2015, together with excerpts of evidence in this proceeding, to the father’s employer. As recently as September 2016, the mother enclosed the s.11F report in sent correspondence to the father’s employer as what she described as punishment “letting everyone know what he did.” She also sent the father’s employer text messages accusing (without proof) the father of defrauding his employer.[9]
[9] Exhibit A4
I regard that conduct as completely outrageous. Furthermore, it is in breach of the provisions of the Act.[10] It was apparent that the mother was prepared to act in a way which was ultimately not in the best interests of the child (such would be the result if the father was to lose his job) for the purposes of punishing or generally traducing the reputation of the father.
[10] Section 121 of the Act
I agree with the evidence the family consultant gave at the hearing that the undermining behaviour engaged in by the mother has a potentially disastrous consequence on the relationship that X has with her father. For these reasons, I am of the view that it is appropriate that the mother and father exercise equal shared parental responsibility for the child. This position was supported by the Independent Children’s Lawyer.[11] I also agree that the father’s time with the child should increase in accordance with those recommendations.
[11] ICL’s Outline of Case pages 3 and 4
There was evidence before the Court from which I find that the father may have “wound up” the mother. For instance, at the hearing the issue of the non-payment of certain child care fees was raised. The father’s approach was to engage with the mother to ascertain the number of days the child had attended childcare. The better approach would have been to make an enquiry directly to the childcare centre and avoid conflict.
Equal time/ substantial and significant time
Neither party sought an order for equal time in this case. In my view, the evidence supports the orders that X should spend substantial and significant time with each of her parents, as such would be in the best interests of the child and reasonably practicable (s.65DAA(2)). In my view, the orders sought by the mother do not constitute substantial and significant time. In my view, the orders sought by the Independent Children’s Lawyer provide the father with an opportunity to spend substantial and significant time with X. In terms of the changeover, I believe that the proposal suggested by the Independent Children’s Lawyer, with changeover occurring at early learning, kindergarten or school (as may be applicable) and otherwise at a McDonalds family restaurant, as being close to the midpoint between the parents respective homes or alternative venue as may be mutually agreed in writing from time to time, is the appropriate course to follow. I have modified those orders to allow for the father to spend 5 days in a row with X in January 2017. I believe that is appropriate and in the best interest of X having a relationship with her father.
The affidavit material in the case shows that there has been a high level of conflict between the parties at changeovers with accusations that the mother has been swearing and spitting at the father on occasion. For these reasons, the orders of the court follow to a significant extent the orders propounded by the Independent Children’s Lawyer as being appropriate and in accordance with the considered recommendations contained in the report of Ms L. I am mindful of the oral evidence given by Ms L that if there is a failure on the part of the mother to cooperate in the father spending substantial and meaningful time with X in accordance with these orders, that it may justify a change in residence of the child. The clear evidence from Ms L was that X loves her father and enjoys spending time with him.
There was evidence before the court was also that the father had undergone drug and alcohol testing and had liver function tests which came up with a normal result. There have been concerns in relation to his alcohol consumption which were raised by the psychiatrist and by the mother. Mr Hutton must acknowledge that he is working in a business where business lunches are a common feature and at which alcohol is regularly consumed. He will have to balance the expectations of his work in relation to the entertainment of clients, with his care of X and the importance of him complying with the terms of these orders.
Section 60CC Factors
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents.
In my view, the orders proposed by the Independent Children’s Lawyer and to a great extent by the father, promote a meaningful relationship between X and her father. The corrosive impact of the mother’s attitude to the father was raised by the report writer in their report and references made to that in the viva voce evidence which has been referred to above. It is for these reasons that it is important that X be protected from those impulses and attitudes and that the protective considerations arising under s.60CC(2)(b), and the risks that X’s longer-term emotional well-being will be affected by the mother’s attitude to the father.
There is also the risk of conflict at changeovers and for these reasons the changeovers supported by the Independent Children’s Lawyer and the father address this risk.
That the protective considerations arising in relation to the father’s alleged alcohol abuse are addressed by the orders restraining his use of the alcohol whilst in the company of X for two years from the date of these orders and thereafter being intoxicated to the extent of having a blood alcohol content in excess of 0.05% whilst X is in his care in relation to the considerations and to s.60CC(3).
Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
There appears to be an ongoing dispute in relation to the level of child support displayed by the father. That is the subject of a separate application.
There was evidence given regarding a dispute regarding arrears of child care fees and there is some dispute as to the level of arrears. In relation to the father’s ongoing maintenance of the child, it was agreed in the course of the proceeding that the father would pay 50% of the fees associated with X attending (omitted) School for two years commencing in 2017.
I note that there was no agreement by the father to pay the ongoing costs of an education at that school and I took it that his agreement was effectively without prejudice to his right to nominate some alternative education at the end of the two year period.
In relation to the effect of changes, X currently spends one overnight period and two other periods with her father each week. The proposal of the Independent Children’s Lawyer was supported by the family report writer. The family report writer gave evidence that she did not take issue with the proposal put forward by the father.
Section 60CC(3)(f): the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs
The mother raised issues which are regarded as inappropriate, the bathing of X with two young children who live next door to the father. I did not regard those issues as significant, and the father’s response to those matters in the witness box indicated that he was alive to X’s needs and sensitive to ensure that his conduct would not inflame and excite further conflict with the mother.
There is an issue of the mother’s capacity to deal with the emotional upset that has arisen from the events surrounding the breakdown of this relationship. The mother was diagnosed as having an adjustment disorder with depressed and anxious mood and features of traumatisation in partial remission. The family report writer suggests that the mother would benefit from an intensive therapeutic work to assist her in working through her experience and gaining insight.[12]
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[12] Family report at [69]
Not an issue in these proceedings.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This has been discussed above.
Section 60CC(3)(j) any family violence involving the child or a member of the child's family
This has been discussed above.
Attitude to Section 60CC(k): Family violence orders
Each of the parents have been the subject of a family violence order in favour of the other and each party has been charged with breaching the order. The charges against the father are listed for diversion hearing on 22 November 2016. The court is not aware of the result of that hearing. The charges against the mother are listed for mention on 22 December 2016. The existence of these orders are a stark evidence of the extent of the ongoing conflict between the parties.
Section 60CC(l): order that would be least likely to lead to the institution of further proceedings in relation to the child
The Independent Children’s Lawyer has sought orders for counselling for the mother and the father gave evidence that he would be prepared to engage in the therapeutic process with the mother with a view to finding a co-parenting approach to raising X. Paragraphs 15 and 16 of the orders proposed by the Independent Children’s Lawyer deal with those considerations whilst the report writer did not appear to be overly optimistic about the capacity of the parties in this proceeding to move forward without further conflict which might result in further court proceedings. It is hoped that participation with skilled experienced clinicians might assist.
In light of the damaging effects of ongoing litigation on the parties and X and the real risk that significant tension may persist between the mother and father, I have included an Alternative Dispute Resolution clause. This is to try and give the parties the opportunity to resolve matters that may arise between them without recourse to expensive and emotionally damaging litigation.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 21 December 2016
| ANNEXURE | |||
| Issue | ICL Proposal | Mother’s Proposal | Father’s Proposal |
| Parental responsibility | That all previous parenting orders be discharged. That the Mother and Father exercise equal shared parental responsibility for X. That X live with the Mother. | That the mother has sole parental responsibility for the child. That X live with the mother. | All previous orders be discharged. The Mother and Father have equal shared parental responsibility for X. X live with the Mother. |
| Live with (Agreed between all parties) | - X to live with mother | ||
| The Father spend time with and communicate with the child as follows:- Commencing immediately:- | Week one: In week one from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to early learning. In week two from 9:00am Saturday to 4:00pm Sunday. For a one week block in January as agreed and failing agreement from midday 1 January to midday 8 January. | Week one: From 5:30pm every Tuesday to 8:00am every Wednesday (Pick up and drop off from mother’s home) Week two: From 12:30pm Saturday to 4:00pm Sunday (pick up and drop off from mothers home) | Week one: Each week from 3:30pm Wednesday to 9:00am Thursday. Each alternate weekend from 9:00am Saturday to 4:00pm Sunday. For a five (5) day block in January 2017 as agreed and failing agreement from midday 1 January 2017 to midday 5 January 2017. |
| Commencing the first week in March 2017:- | In week one from 5:30pm Friday to 4:00pm Sunday; In week two from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to early learning. | In week one from the conclusion of early learning or 3:30pm Friday to 4:00pm Sunday. In week two from the conclusion of early learning or 3:30pm Wednesday to the commencement of early learning or 9:00am Friday. | |
| Upon X commencing school, upon the commencement of Term 2 (July) of that year:- | In week one from 5:30pm Friday to the commencement of school or 9:00am Monday (or Tuesday if Monday is not a school day). In week two from 5:30pm Tuesday to 9:00am Wednesday, with the Father to deliver X to school. One half of each of the school term holidays as agreed and failing agreement the first half; One half of the long summer holidays alternating as to the first and second halves with the Father to exercise time in the second half in first year of operation. | In week one from after school Tuesday to commencement of school Wednesday, with father to deliver X to school In week two from 12:30pm Saturday to 7:30am Monday (drop off at mother’s home) 5 days of school term holidays Alternating 5 day blocks of long summer holidays | In week one from the conclusion of early learning/ school or 3:30pm Friday to the commencement of early learning/school or 9:00am Monday (or Tuesday if Monday is not a school day). In week two from the conclusion of early learning/ school or 3:30pm Wednesday to the commencement of early learning/school or 9:00am Friday. One half of each of the school term holidays as agreed and failing agreement the first half. One half of the long summer holidays alternating as to the first and second halves with the Father to exercise time in the second half in first year of operation. |
| In addition to the above the Father spend time as follows:- | From 4:00pm Christmas Eve to 4:00pm Christmas Day in the year 2017 and each alternate year thereafter; From 4:00pm Christmas Day to 4:00pm Boxing Day in the year 2016 and each alternate year thereafter; | From 4:00pm Christmas Eve to 4:00pm Christmas Day in the year 2017 and each alternate year thereafter; From 4:00pm Christmas Day to 4:00pm Boxing Day in the year 2016 and each alternate year thereafter; | From 4:00pm Christmas Day to 4:00pm Boxing Day in the year 2016 and each alternate year thereafter. From 4:00pm Christmas Eve to 4:00pm Christmas Day in the year 2017 and each alternate year thereafter. From 4:00pm Easter Sunday to 4:00pm Easter Monday in the year 2017 and each alternate year thereafter. From 4:00pm Easter Saturday to 4:00pm Easter Sunday in the year 2018 and each alternate year thereafter. |
| In addition to the above the Father spend time as follows:- (agreed between all parties) | In the event that the child’s Birthday falls on a day that the Father would normally spend time, for not less than three hours, on such day at times to be agreed and failing agreement, from 3:30pm to 7:00pm on a weekday or 1:00pm to 5:00pm on a weekend day; In the event that Father’s Birthday is not a day that the Father would normally spend time, for three hours on the Father’s birthday at times to be agreed and failing agreement, from 3:30pm to 6:00pm on a weekday or 1:00pm to 5:00pm on a weekend day; In the event that Father’s Day is not a day that the Father would normally spend time from 5:00pm Father’s Day eve to 4:00pm Father’s Day; on not less than one occasion per week via telephone/video call/ or Skype on a day and time to be agreed between the parties and failing agreement between 6:30 – 7:00pm. The Mother to facilitate and provide privacy for such communications; and such further and other times as may be agreed to in writing between the parties. That the Father’s time as referred to in paragraph 4(f) and (g) above be suspended: (a) during school holiday periods; (b) on Mother’s Day from 5:00pm Mother’s Day eve to 4:00pm Mother’s Day; (c) On the child’s and the Mother’s Birthday for the same time periods as specified above for the Father to see the child on those days, in the event such days fall on days the child is in the Father's care. (d) On (omitted) Easter, with the Mother to provide make-up time in the event that it falls during the Father’s time with the child. That the Mother be at liberty to communicate with the child via telephone/video call/Skype, on one occasion during weekend time and twice during school holidays. The Father is to facilitate and provide privacy for such communications. | ||
| Changeovers Father & ICL agree on the proposal | Changeovers are to occur at Early Learning, Kindergarten or school (as may be applicable) and otherwise at a McDonalds Family Restaurant as close to a mid-point between the parent’s respective homes or an alternate venue as may be mutually agreed in writing from time to time. The parents are to advise the other is the event that an agent will undertake changeover. | ||
| Keep the other party informed - Father & ICL agree on the proposal | 8. That both parties forthwith advise and keep the other advised as to:- (a) The name and address of any health professionals of the child; (b) Except in an emergency, or in the case of the need for urgent treatment, advise the other 7 days in advance of any medical appointments and the purpose of such appointment via email, letter or SMS text message; and (c) Authorise and direct the child’s child care providers, schools and any and all health professionals to provide any information that parents might normally be entitled to receive from time to time as requested such parent, and each party is at liberty to attend upon health professionals and parent teacher interviews at their own time and expense other than when the other is present or jointly if so agreed. 9. That the Mother and Father each advise the other as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of:- any significant injury or illness affecting the child; any illness requiring the provision of any medication prescribed by a medical Practitioner; and any hospital attendance by the child; 10. That the Mother do all things necessary to authorise the Father and to keep the Father authorised to receive information at the expense of the Father copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent and that the Father be permitted to attend the children’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the child participates in. 11. That each party keep the other advised as to their and if relevant the child’s residential address, landline and mobile telephone numbers and email addresses and notify the other of any change to such details within 24 hours of such change. 12. That the Mother and Father together with their servants and agents be and are hereby restrained from:- (a) denigrating the other to and in the hearing of the child or allowing another to engage in such conduct; (b) and discussing family law matters with the child, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them. 13. That the parties utilise a Communications Book detailing information pertaining to the child’s health, education, social activities and shall move with the child between households. 14. That both parents are to ensure that each of them is provided with a copy of any medical assessment/treatment plan with respect to the child and both parents are to follow the directives of treating health professionals as may be recommended by them. 15. That the parents forthwith enrol in and complete a post separation parenting course and provide evidence of completion to the other or their legal representative. 16. That the Mother engage with a psychologist/counsellor to support her in exercising a joint parenting regime with the Father and to support X in developing her relationship with the Father and such psychologist/counsellor be provided with a copy of Dr T and Ms L’s reports for this purpose. | ||
| Other orders | The Father be and is hereby restrained from consuming alcohol whilst X is in his care for the next two years and thereafter the Father is restrained from consuming alcohol to excess, meaning having a blood alcohol level of .05 or above whilst X is in his care. | Father to be restricted from consuming alcohol 12 hours prior to having X in his care and whilst X in his care; X to not be bathed with any other children whilst in the father’s care; The father pay 75% of X’s school fees which is in line with salaries earnt of mothers | The Father be restrained: From consuming alcohol whilst X is in his care for a period of 2 years from the date of these orders; Thereafter, being intoxicated to the extent of having blood alcohol content in excess of .05 per centum whilst X is in his care. |
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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Statutory Construction
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