Ibbott and Wilcox

[2014] FCCA 2036

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBBOTT & WILCOX [2014] FCCA 2036

Catchwords:
FAMILY LAW – Parenting – interim hearing – relocation – family violence – consideration of what orders expose child to least risk of exposure to family violence.

Legislation:

Family Law Act 1975, s.60CC(2A)

Applicant: MS IBBOTT

Respondent: MR WILCOX

File Number: SYC 5716 of 2008

Judgment of: Judge Dunkley

Hearing date: 14 August 2014

Date of Last Submission: 14 August 2014

Delivered at: Parramatta

Delivered on: 23 September 2014

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Peters

Solicitors for the Applicant: Aboriginal Legal Service

Counsel for the Respondent: Mr Morris

Solicitors for the Respondent: Ly Lawyers

Counsel for the Independent Children's Lawyer: Ms Conte-Mills

Solicitors for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS PENDING FURTHER ORDER:

1. All prior parenting orders are suspended.

2. The father shall have sole parental responsibility for the child [X] born on [omitted] 2007.

3. [X] shall live with the father as and from 1pm on 27 September 2014.

4. [X] shall spend time with her mother:

   (i)One weekend a month, being the second weekend of each month from 10am Saturday to 4pm Sunday with changeover to occur in the foyer of [T] Police Station;

   (ii)For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in years ending in an even number; and

   (iii)At any other times as agreed.

5. The father is restrained from physically chastising or physically disciplining [X].

6. The father shall not permit, allow or condone any other person to physically chastise or physically discipline [X].

THE COURT FURTHER ORDERS:

1. The father shall, through a provider of his choice, as soon as possible enrol in and complete the parenting programme known as “1, 2, 3 Magic” and then provide a copy of the certificate of completion to the Independent Children’s Lawyer.

2. To facilitate Order 3 hereof the mother shall deliver the child [X] into the care of the father at 1pm on 27 September 2014 in the foyer of the [K] Police Station.

IT IS NOTED that publication of this judgment under the pseudonym Ibbott & Wilcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 5716 of 2008

MS IBBOTT

Applicant

And

MR WILCOX

Respondent

REASONS FOR JUDGMENT

1. This case was listed for a four day final hearing on 11, 12, 13 and 14 August 2014. To be decided was what parenting orders should be made regarding [X] aged 6.

2. On the first day of the final hearing the case could not proceed because Counsel then retained for the mother discovered he had a conflict. He was given leave to withdraw and the dates for final hearing were vacated.

3. That created significant concern for the Independent Children’s Lawyer and the father who both agitated for an interim hearing citing delay not to be in [X]’s best interest.

4. To allow the mother to seek representation the interim hearing was adjourned from 11 August 2014 until 14 August 2014. Final hearing dates are now not available until May 2015, in my docket.  

5. The parties are the parents of [X] born on [omitted] 2007.

6. The mother seeks orders as follows:

   a)For equal shared parental responsibility

   b)That [X] live with her

   c)That [X] spend time with the father:

   i)each alternate weekend during school terms;

   ii)nearly all the Term 1, 2 and 3 school holidays;

   iii)the majority of the Term 4 school holidays.

   d)She proposes change over in [omitted], which is located on the mid North Coast of New South Wales.

7. She relies on her Affidavit sworn 21 July 2014 and her Affidavit sworn 15 July 2014.

8. The father seeks orders:

   a)For sole parental responsibility;

   b)That [X] live with him if the mother remains in [K];

   c)That [X] live in an equal time arrangement if the mother relocates to near his home, in [H], a suburb in South Western Sydney.

9. He relies on the following documents:

   a)His Affidavit sworn 25 June 2014;

   b)An Affidavit by his partner Ms D sworn 25 June 2014; and

   c)An Affidavit of the paternal grandmother, Ms W sworn 25 June 2014.

10. The Independent Children’s Lawyer seeks orders as follows:

    a)For equal shared parental responsibility;

    b)That [X] live with the father;

    c)That [X] spend time with the mother:

    i)If the mother lives within 30km of the father’s residence:

    1.   In week one from after school Friday until before school on the subsequent Friday and each alternate week thereafter;

    2.   In week two from 10am Saturday until before school on Wednesday.

    (ii)If the mother lives more than 30km from the father’s residence:

    1.   For half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods;

    2.   For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.

    (iii)At any other times as agreed.

    d)That for the purposes of spending time with the child pursuant to the Order (c)(i) on school days the mother will collect the child from school at the commencement of her time and will return the child to school at the conclusion of her time. On non-school days, the father is to deliver the child to the mother’s residence at the commencement of the mother’s time and the mother is to return the child to the father’s residence at the conclusion of the mother’s time.

    e)Each party shall do all things necessary to re-enrol the child at the [S] School, [address omitted] and ensure she attends that school.

    f)That both parties have liberty to contact the child by telephone at any reasonable time whilst the child is in the care of the other party.

    g)That both parties are to keep the other party advised of their current residential address and contact telephone numbers and advise the other party of any changes to these details within 7 days of such changes occurring.

    h)That the parties refrain from denigrating or allowing others to denigrate the other party in the presence or hearing of the child.

    i)That the parties refrain from physically chastising the child or allowing any other person to do so.

11. A Family Report was prepared by Mr L dated 25 April 2014 and became Exhibit “A”.

Issues

Pending further order:

a)What order is to be made for parental responsibility; and

b)What parenting orders are in [X]’s best interest.

Chronology

[date omitted] 1981	Mother born
[date omitted] 1982	Father born
[date omitted] 2002	Mother’s child [Y] born. [Y]’s father is [name omitted]
2006	Parents meet
2007	Parties reside together at [omitted], mother diagnosed with bi-polar disorder
[date omitted] 2007	[X] born
Approximately Feb 2008	Parties separate. Father moves out to his mother’s home
Approximately June 2008	Father removes [X] from mother while she is in the shower. Recovery order obtained returning [X] to mother
August 2008	Recovery Order granted returning [X] to mother’s care
2009	Mother sees GP re mental health until 2012
10 August 2009	Medico-Legal Report of Dr R
16 December 2009	Final parenting orders made by consent in the Federal Magistrates Court Sydney
Mid August 2010	Father placed in emergency accommodation. As a result he can’t have [X] with him
2 October 2010	Father obtains housing in [H]. Mother does not let father see [X] as he disappeared. Mother invites father to take her back to Court. Father requests mediation
February 2011	Parties attend mediation and agree to alter 2009 orders. Father alleges parties able to communicate without issues. Mother at [omitted] Hospital for observations. [X] stayed with father full time for two days to four weeks at a time. Father alleges mother relocates four times with new partner, Mr G
[date omitted] 2011	Mother’s child [Z] born. [Z]’s father is Mr G
October 2011	Mother relocates with [Z] to a friend’s house near Victorian border. [X] stayed with father
January 2012	Mother returns to live with her mother
Approximately April 2012	Mother commences travel to [K] for work and away for up to 8-9 days at a time
April/May 2012	Mother commences seeing psychiatrist Dr A in [K]
27 January 2013	Father does not return [X] to mother’s care. Father alleged mother was away and left [X] with maternal grandmother despite court orders
February 2013	[X] commences school at [S] School
19 February 2013	Mother swears Affidavit
7 March 2013	Mother files Initiating Application seeking recovery order
12 March 2013	Orders made for equal time, alternate weekends
16 March 2013	Mother sees [X] for first time since 27 January 2013
1 May 2013	Mother files amended application
13 May 2013	Father’s partner Ms D swears Affidavit
16 May 2013	Orders made appointing Independent Children’s Lawyer
15 July 2013	Father files amended application in a case
17 July 2013	Orders made for the preparation of a Family Report
11 September 2013	Ms D hits [X]. Leaves a bruse and is charged. Receives a section 10 Bond to be of good behaviour for 18 months
15 September 2013	Father texts mother to the effect that he can’t fight anymore and will “sign her over”. Mother believes he no longer wishes to see [X]
28 September 2013	Mother relocates to [K] with [X]
12 December 2013	Mother contact father about whether he wants to see [X] for her birthday. Mother alleges no response
25 December 2013	Domestic violence incident between mother and her partner Mr S. AVO’s obtained for both
10 March 2014	Father swears Affidavit
11 March 2014	Father files Application in a Case
28 April 2014	Orders releasing a Family Report
5 May 2014	Orders made listing case for final hearing
6 June 2014	[X] spends time with father for June long weekend with changeover at [T] Police Station
19 June 2014	Domestic violence incident between mother and her partner Mr S, mother arrested. Mother and [X] move out of the home they shared with Mr S
25 June 2014	Father’s partner Ms D swears Affidavit
26 June 2014	Mother last saw Dr A
28 June 2014	[X] spends first week of holidays with father
15 July 2014	Maternal grandmother swears Affidavit
19 July 2014	[X] in Sydney and spends time with father
21 July 2014	Mother swears consolidated Affidavit
25 July 2014	Father swears consolidated Affidavit, Paternal Grandmother Ms W swears Affidavit
11 August 2014	Case listed for final hearing with a four day estimate. Adjourned to 14 August 2014
14 August 2014	Interim hearing

1. Much of the above chronology has been distilled from the parties Affidavits and the Court file. It does not represent agreed facts. There is little dispute between the parties as to the above.

Evidence

1. From March 2013 until September 2013 [X] was to live week about with her parents.

2. In September 2013 the mother relocated to [K] without the father’s approval.

3. He became disheartened and did not immediately take action to enforce the orders for equal time.

4. Since relocating with [X] to [K] in October 2013, the mother has been involved in a volatile relationship between the mother and her partner Mr S likely exposing [X] to significant domestic violence.

5. The mother has been arrested and charged in the course of which she was conveyed to the police station by the police accompanied by [X]. No-one was available to care for [X] during this process.

6. The mother’s mental health management remains problematic. She has since moving been in receipt of treatment from a psychiatrist Dr A, in [K].  

7. [X] has had some difficulties at school in [K], which would be consistent with [X] reacting to the volatile circumstances she has experienced in living in [K] with her mother, although no definite finding is possible at this interim stage.

8. The mother has two other children from other relationships. [Y] aged 11 and [Z] aged 2.

9. [Y] is cared for by the maternal grandmother, Ms I and has been since September 2013. The maternal grandmother lives at [R] on the outskirts of Sydney with [Y].

10. [Z] lives with the mother. [Z] has also spent large blocks of time, from time to time, with the maternal grandmother.

11. [X] was inappropriately disciplined by the father’s partner Ms D in September 2013. [X] had bruising to her leg. Ms D was charged and convicted and placed on a good behaviour bond for eighteen (18) months. Her good behaviour bond is current for a further six months until March 2015.

12. The mother has casual employment in [K] working [omitted].  

13. [X] currently attends [A] School. She is in year one.

14. The mother had a diagnosis of bi-polar disorder. After consulting Dr A he believes she has a Borderline Personality Disorder. He has written a report dated 7 July 2014 annexed to the mother’s Affidavit.

15. The father and his partner have a child [name omitted] aged 3. The father’s partner has a daughter [name omitted] aged 9. Both children live with the father and his partner in [H]. [H] is in South Western Sydney, nearby to [omitted].

16. Mr L observed [X] with both household groupings[1].

    [1] See paragraph 27 of the Family Report

17. In paragraph 32 of the Family Report Mr L opines:

    Although there were occasions when [X] had been exclusively with Mr Wilcox or Ms Ibbott, her parenting history indicates that, in general, she has had substantial involvement with both parents. The equal care arrangement may have served [X]’s emotional needs, in spite of her parent’s acrimonious relationship. She impressed as a confident and emotionally secure child. Both parties, however, report that they found communication difficult and the resolution of parenting disputes often relied on the maternal grandmother. It seems that when Ms Ibbott’s interest in living at [K] gathered strength, in 2012, the parties’ mutual hostility intensified. Her departure for [K], in September 2013, added another layer of hostility and neither she nor Mr Wilcox has spoken since.

18. Mr L believes an equal time regime whilst applying in the past is no longer appropriate for [X][2].

    [2] See paragraph 33 of the Family Report

19. He concludes [X] should live with one parent and spend time with the other.

20. In paragraph 41 of the Family Report Mr L says:

    Judicial scrutiny may determine the facts which apply in this matter. This assessment, however, is not able to evaluate the parties’ competing claims. This assessment does indicate that if [X] were to remain with her mother, she appears to have a relationship with her father which will endure, but develop less. Clearly, the same would apply regarding Ms Ibbott, if the child were to live with Mr Wilcox.

21. In paragraph 42 of the Family Report Mr L says:

    The more appropriate outcome for [X] would be for Ms Ibbott to delay her move to [K] and return to her mother’s home. Because [X] will have lived exclusively with Ms Ibbott for a substantial period, and may have been with her for over a year before this matter is determined, and in the interest of continuity, it would seem to be more appropriate for the child to live with her mother and spend at least alternate weekends with her father. Contact between the parents might be minimised by arranging changeovers, after and before school.

22. Such was the volume of subpoenaed material that was tendered by the legal representatives and became Exhibits; it was not possible to hand down a decision on 14 August 2014.

23. Exhibit “B” is [X]’s semester one report 2013 from [S] School. The public school she attended before relocating to [K]. [X] was noted to be a polite well-mannered student who has settled into school routine.

24. Exhibit “C” were photos of bruising to [X]’s leg, caused by the father’s partner.

25. Exhibit “D” are the records of Dr A and [omitted] Hospital.

26. On 16 May 2014 the mother presented to [omitted] Hospital and was triaged by the clinical nurse consultant. Her mental health was assessed.

27. The mother reported having ceased her medication three months earlier. This would undercut Dr A’s treatment of her.

28. She had a number of presentations to the hospital before this.

29. My tentative assessment of Dr A’s report is that he sees the mother at a regular clinic but may not have known of or have reviewed all her hospital presentations. This tentative finding would need further exploration at final hearing.

30. It is apparent the mother has ongoing problems with her mental health, which creates relationship difficulties for her and those difficulties then directly impact on [X]. An example of this is the mother’s relationship with Mr S.

31. Exhibit “E” is material produced by the New South Wales Police.

32. As recently as 19 June 2014 the mother was involved in a domestic violence incident. She was charged.

33. The next day the mother again contacted the victim seeking assistance with money and shelter after having been evicted from her residence.

34. Prior to the 19 June 2014 event the police noted a long history of domestic violence between the mother and her partner.

35. The police when they conveyed the mother to the police station also took [X] with them because the mother had no other person who could help her with [X]’s care.

36. Exhibit “F” is material produced by [A] School. The school [X] currently attends in [K].

37. The school records indicate that on 7 May 2014 during lunch time, [X] was threatening “to bash” students. The school records indicate on 6 May 2014 [X] had punched another student. In the period 30 January 2014 to 21 July 2014 [X] was late to attend school on 21 occasions. In addition she was absent from school on four other days without explanation and absent a further 10 days with explanation.

38. Her semester one report 2014 amongst other things said [X] was “very happy”.

39. Exhibit “I” are the notes produced from the Department of Family and Community Services which confirm the family and [X] are well known to the Department. The Department has no ongoing involvement with [X].

40. On 16 December 2009 in the Sydney Registry of the Federal Magistrates Court (as it then was), Federal Magistrate Sexton (as she then was) made final parenting orders by consent. In general terms those orders provided:

    a)That the parties have equal shared parental responsibility;

    b)That [X] live with the mother;

    c)That [X] spend significant and substantial time with the father with such time being extensively defined in the orders.

41. On 12 March 2013 the following orders were made:

    THE COURT ORDERS THAT:

    1. Paragraph 4 of the terms of settlement, made in to orders on 16 December 2009, is to continue in effect, pending further order.

    2. To give effect to that order, week 1 of the regime, will be deemed to conclude at 10am on Saturday 16 March 13

    3. To give effect to that order, week 2 of the regime, will be deemed to recommence at the conclusion of school on 20 March 13.

    4. Pending further order, each party shall ensure that the child [X] (“the child”)  born on [omitted] 2007 remains enrolled at and attends [S] School, [address omitted].

    5. The Respondent, is to file and serve a response, and any relevant affidavit by 10 May 13.

    6. The Applicant is to file and serve an amended application and any relevant affidavit, that fully and comprehensively sets out her circumstances of spending time with the children in the period since Easter 2012 and any other material she considers relevant to the issue that she wishes determined by 10 May.

    7. List the case for Interim Hearing at 9.30am on 16 May 2013.

    8. Pending further order, whilst ever the child is living with the mother, the mother and the child shall live at the home of the maternal grandmother at [omitted], [R].

    THE COURT NOTES THAT:

    9. The effect of the orders made today is that the child will remain in her father’s care until 10am on 16 March and will then live with the mother until the father’s next period of time commences after school on 20 March 13.

Determination

1. In Mr L’s opinion an equal time arrangement for [X] is not appropriate given the intense hostility between the parties. In his opinion [X] should live with one parent and spend time with the other. This opinion has yet to be tested. Caution by me before implementing the recommendation is warranted unless there is in my view overwhelming evidence to support the recommendation. In assessing evidence the onus is the civil standard “on the balance of probabilities”.

2. Mr L found:

   Mr Wilcox to be a concerned and interested father, and together with his partner, he presented as having the capacity to care for [X].

3. Mr L thought if it could be established that Ms Ibbott is unstable, with highly fluctuating moods, and exposing [X] to an erratic lifestyle that it may be in [X]’s interest to live with the father. The material produced on Subpoena exhibited at Interim Hearing establishes the mother is not compliant with her mental health treatment. Until June 2014 the mother lived in a violent volatile relationship to which [X] was exposed. The evidence also shows the mother has not been diligent with [X]’s punctual school attendance.

4. The material produced on subpoena exhibited before me proves there is overwhelming evidence that I accept on the balance of probabilities that does support Mr L’s recommendation.

5. The mother’s life in [K] is chaotic. She has had regular presentations to hospital for mental health reasons.

6. She has until June lived in a domestically violent relationships to which [X] has been exposed.

7. [X] has been regularly late to or absent for unexplained reasons from school.

8. [X] is having trouble in the playground and classroom.

9. The mother has work but little support in [K]. From time to time she needs the help of her mother in Sydney to care for [Z] aged 2. Her older son [Y] aged 12 lives with her mother.

10. As recently as June 2014 she had no home and no money and no support to care for [X] when she was arrested.

11. Despite Dr A’s report I think it is unlikely the mother’s mental health is being adequately managed and this is exposing [X] to the mother’s volatile behaviour. This is not to suggest impropriety by the Doctor, rather non-compliance by the mother.

12. I am satisfied the father is over his period of despondency as a result of the mother’s relocation in September 2013. He is focused on [X]’s needs. Although [X] and the mother were observed by Mr L to relate closely and affectionately, the need to protect [X] pursuant to s.60CC (2A) assumes the most importance at this point in time. He is better able to protect [X] on balance.  

13. When the mother’s mental health is restored by her compliance with treatment and her ability to focus all her attention on [X] returns different parenting order may then be appropriate.

14. Neither an equal shared parental responsibility order nor an equal time order is in [X]’s best interest. In summary because:

    a)The parents cannot now communicate effectively;

    b)The parents live too far apart; and

    c)They are openly hostile in attitude towards each other.

    Even if the mother moves back to Sydney (a) and (c) above still apply.  

15. If the mother remains living in [K] two mid-term weekends and some school holiday periods will be in [X]’s best interest if the mother has adequate accommodation, if she is not living with [name omitted] or any other person which results in domestic violence, and if her mental health care is more closely managed than at present, and she is compliant with treatment.  

16. There is no significant evidence as to [X]’s views. This is understandable given her age.

17. Mr L says [X] interacted affectionately actively and imaginatively with all the adults and siblings in her life. There is no other evidence to the contrary.

18. The mother moved to [K] in late 2013 bringing to an end the equal time arrangement that was then in existence, thereby making it difficult for [X] to maintain a meaningful relationship with her father. [X] then also became separated from her sibling [Y].

19. To live with her father will be a significant change for [X]. She has not lived with him since late 2013, nearly twelve months ago and she would again change school.

20. Not living with her mother will protect [X] from the volatility of the mother’s relationship and her recently chaotic home life. It will mean less time with her mother protecting her from exposure to the mother’s volatility. It would mean less time with [Z].

21. The mother’s capacity to care is currently compromised notwithstanding Dr A’s report which I discount for reason of the material in the [omitted] Hospital notes.

22. The mother is Aboriginal although there is little evidence about how [X] enjoys her Aboriginal culture.

23. The father’s partner, Ms D, has been convicted of assaulting [X] with improper discipline. I am satisfied this was a one off circumstance. The father also seems to use outmode physical discipline. The good behaviour bond to which Ms D is subject remains in place. An order restraining physical discipline, and an order for attendance at a 123 Magic Course will help the father implement alternate discipline strategies. These orders will both reduce the risk that [X] is inappropriately disciplined.

24. Thereby the risk to [X] from the circumstances in her father’s home is significantly less than the risk of [X] being exposed to domestic violence if living with her mother. The home-life in the father’s household is more stable and less chaotic than in the mother’s home. Stability and setteldness will likely benefit [X] and should result in punctual school attendance.

25. Further litigation is inevitable in this case.

26. Neither party says they will move from their current location, the father does not say he can or will move to [K]. The mother does not say she can or will move to Sydney.

27. On balance and until a final hearing or further order considering all the above it will be in [X]’s best interest to live with her father and spend time with her mother.

28. The father is to also have sole parental responsibility pending further order as the parties cannot communicate and be openly hostile and [X] will given her age need to be enrolled at school on moving to live with her father and may need input from doctors or counsellors. Because [X] is to live with the father for these reasons will need to have sole parental responsibility.

29. The father has housing and can accommodate [X]. If the mother remains in [K] [X] is used to travel to spend time with a parent. Changeovers at [T] Police Station have worked in the past. Changeovers at a Police Station should reduce hostility between the parents at Changeover.

30. Limited mid-term periods should reduce travel fatigue for [X] and enable her to maintain a relationship with her mother and [Z]. The periods of separation would change their relationship. If the mother did return to live in Sydney then more frequent time may be in [X]’s best interest, but not equal time given Mr L’s opinion.

31. Shorter and less frequent periods of time with her mother will reduce [X]’s exposure to her mother’s current chaotic living circumstances.

32. For all of these reasons the orders are in [X]’s best interest.

33. Limiting the frequency of the long drive to [K] will reduce fatigue for [X].

34. Both parties have a motor vehicle.

35. The father has housing to accommodate [X].

36. Having sole parental responsibility will ease decision making for the father.

37. These reasons also make the interim orders reasonably practicable. 

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  23 September 2014