IDONI & SOHRAB

FAMILY COURT OF AUSTRALIA

IDONI & SOHRAB

[2015] FamCA 350

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – whether equal time is in best interests of the children – allegations of family violence directed to mother’s current partner – father’s ability to foster meaningful relationship with other parent – best interests of the children - benefit to the children of maintaining meaningful relationship – orders made for children to spend equal time with parents.

Family Law Act 1975 (Cth) s 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence & Other Measures Act 2011 (Cth)
Evidence Act 1995 (Cth) s 128

AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Idoni

RESPONDENT:

Ms Sohrab

INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor and Co

FILE NUMBER:

ADC

143

2013

DATE DELIVERED:

14 May 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

28, 29, 30 April 2015 and 1 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fryer

SOLICITOR FOR THE APPLICANT:

Adelaide Lawyers

COUNSEL FOR THE RESPONDENT:

Ms DuBarry

SOLICITOR FOR THE RESPONDENT:

Vicki Lehmann and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor and Co

UPON NOTING that the father intends to be responsible for the private school fees and other costs and charges likely to be incurred by the children in respect of their attendance at S Primary School but would invite a contribution to those fees, costs and charges from the mother

Orders

That the parties have equal shared parental responsibility for C born … 2007, Z born … 2010 and Y born … 2012.
That until the commencement of first term in (the 2016 academic year), C shall live with the father.
That until the commencement of the 2016 academic year, C shall spend time with the mother as follows:-
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday (but if a public holiday then until 4pm) and each alternate week thereafter commencing 21 May 2015;
(b)for the first week of the end of third term holiday period from 4pm Friday until 4pm the following Saturday;
(c)for half of the Christmas school holidays on a week on/week off basis PROVIDED that the three children shall be together for the Christmas school holidays;
(d)from 4pm Christmas Day until 4pm Boxing Day in 2015 and each alternate year thereafter;
(e)from 4pm Christmas Eve until 4pm Christmas Day in 2016 and each alternate year thereafter.
That until the commencement of the 2016 academic year, Z and Y shall live with the mother.
That until the commencement of the 2016 academic year Z and Y shall spend time with the father as follows:-
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday (but if a public holiday then until 4pm) and each alternate week thereafter commencing 28 May 2015;
(b)for the second week of the end of third term holiday period from 4pm Saturday until 4pm the following Sunday;
(c)for half of the Christmas school holidays on a week on/week off basis PROVIDED that the three children shall be together for the Christmas school holidays;
(d)from 4pm Christmas Eve until 4pm Christmas Day in 2015 and each alternate year thereafter;
(e)from 4pm Christmas Day until 4pm Boxing Day in 2016 and each alternate year thereafter.
That the operation of paragraph 3 (a) and 5 (a) are suspended during all periods of school holidays.
That as and from the commencement of the 2016 academic year, the children shall live with the parties on a week about basis from the conclusion of school on Friday to the conclusion of school on the following Friday (or if not a school day THEN until 4pm in each case) PROVIDED THAT the parent with whom the children live with on the last period of the school holidays shall commence their time with the children on the second week of the new school term.
The children shall spend time with the father on Father’s Day from 9am until 6pm and with the mother on Mother’s Day from 9am until 6pm.
Such further and other times as may be agreed between the parties.
That all handovers that do not take place at the children’s school shall occur at McDonald’s Restaurant … or at such other place as the parties may agree.
That each party is to keep the other of them informed by the provision of a current contact mobile telephone number and the residential address where the children are to primarily reside.
That each party is to contact the other in the event of an emergency involving any of the children.
That each of the parties will facilitate the children being able to telephone the non-residential parent upon their request.
That the parties shall ensure that all communication between them is conducted in an appropriate and respectful manner.
That the parties shall do all things necessary and sign all documents as may be required to ensure that C and Z (and if so agreed Y) are enrolled at S Primary School, Suburb E for the 2015 and 2016 academic years.
The parties will do all things necessary to change any current enrolment in respect of the child C to reflect that there is a joint enrolment by the parties and that the school will have and record the separate contact details of each of the parties.
That the parties will do all things necessary to cause Y to be enrolled and to attend at a kindergarten or early learning centre in 2016 (if not available at S Primary School) and that each of the parties will authorise the children’s kindergarten, school or early learning centre to release to the other copies of school reports, newsletters, photographs and other materials to which parents are usually entitled.
That each of the parties will be at liberty to attend all kindergarten, school or early learning centre functions and other events to which the parents are usually invited SAVE AND EXCEPT that they shall use their best endeavours to ensure that unless it is their joint agreement to do so, any attendance in the classroom or at parent/teacher evenings will be scheduled at a time not to coincide with the attendance of the other party.
That each party is restrained and an injunction is hereby granted restraining each of them from:-
(a)assaulting, harassing, threatening, intimidating, abusing or denigrating the other, the other’s partner or any other member of the other’s family and from permitting any other person to do so;
(b)communicating with the other parent save as to any issue that relates to the children or their welfare and in that circumstance the parties will communicate via email, respectful text messaging, a communication book or by telephone if there is agreement to do so;
(c)facilitating the children attending upon any counsellor, therapist, psychologist, social worker or specialist health professional without the prior written consent of the other parent;
(d)without admission, physically disciplining any of the children or from permitting any other person to do so;
(e)without admission, consuming illicit substances or alcohol to excess during any period of time that the children are in their care or permitting any other person to do so.
That each party do complete an attend the Kids R First Parenting Program within eight (8) months of the date of this order.
The appointment of the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Idoni & Sohrab has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 143 of 2013

Mr Idoni

Applicant

And

Ms Sohrab

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 6 June 2014, Mr Idoni (“the father”) sought parenting orders in respect of C born in 2007, Z born in 2010 and Y born in 2012.
At the commencement of the proceedings the father sought leave to amend his application to seek orders in terms of a proposed draft order tendered on his behalf.
Whilst there was no change to his former position namely, that the parties should have equal shared parental responsibility for the children and that they should live with him, the proposed orders set out in greater detail the time that the children would spend with the mother. Whilst ultimately in counsel’s final submissions made on behalf of the father different orders were sought, it is relevant to give context to the proceedings that his orders are set out in some detail namely:-
(3) That the said children spend time with the mother:-
(a)every alternate weekend from the conclusion of school Friday until the commencement of school on Monday;
(b)by telephone and/or by any other electronic means during the intervening week on at least two occasions;
(c)during half of all school holiday periods and for half of all special occasions as agreed or otherwise ordered;
(d)at such further or other times as may be agreed.
(4)That the mother be restrained by injunction from:-
(a)removing the children from the father’s care save for times as ordered;
(b)bringing the children into contact with [Mr G] or allowing any person from doing so;
(c)using or being under the influence of illicit substances when the children are in her care or 24 hours prior thereto, or allowing any other person from doing so;
(d)removing or changing the enrolment of the children’s school from [S Primary School] at [Suburb E].
(5)That the child [C’s] time provided for herein be subject to the mother and the said child engaging within therapeutic counselling directed at re-unification and that such time be in accordance with the child’s wishes.
There was no opposition to the father’s application for leave to amend the orders either at the commencement of the proceedings or as set out in the final submissions of his counsel. Whilst not wholly acceptable to the mother, the father’s position was ultimately more generous than his original proposal.
By Response filed 4 July 2014, Ms Sohrab (“the mother”) opposed the orders sought by the father save as to the agreement that the parties should have equal shared parental responsibility for the children.
She sought that the children would live with her but would spend time with the father as follows:-
(a)from after school to 7.30pm each Monday, Thursday and Friday;
(b)from 9am to 7pm each alternate Sunday until the father finds suitable accommodation;
(c)upon the father finding suitable accommodation, from 4pm Saturday to 7pm Sunday each alternate weekend;
(d)such other times as may be agreed.
The mother no doubt had cause to reassess the orders that she sought and at the commencement of the proceedings she also sought leave to further amend her Response in terms of the orders set out in the Outline of Case document tendered by her counsel.
Whilst the principal contention of the mother is that the children should live primarily with her, she seeks orders that the children would spend significant and substantial time with the father as follows:-
(a)from conclusion of school Friday to 4pm Sunday and each alternate weekend thereafter;
(b)for one week of each short term holiday period from 4pm Friday to 4pm the following Friday to coincide with the weekend that the father would ordinarily be spending time with the children, provided however that the father is on leave from work;
(c)for half of the Christmas school holidays on a week on/week off basis provided the father is on leave from work;
(d)from 4pm Christmas Day until 4pm Boxing Day in 2015, and each alternate year thereafter;
(e)from 4pm Christmas Eve until 4pm Christmas Day in 2016, and each alternate year thereafter;
(f)from 10am until 4pm on Father’s Day in each year provide that the children shall be in the mother’s care at the same times on Mother’s Day in each year.
Additionally, the mother sought orders of injunction in respect of both parties restraining each of them from:-
(a)consuming any illicit drugs as any time that the children are in the care of that party;
(b)from consuming alcohol to excess, or allowing any other person to do so, in the presence of the children;
(c)from physically disciplining the children or allowing any other person to do so;
(d)from denigrating the other party in the presence of the children, or allowing any other person to do so; and
(e)from harassing, abusing or interfering with the other party.
At the commencement of the proceedings counsel for the Independent Children’s Lawyer (“ICL”) sought to be excused from presenting orders proposed by the ICL until the evidence had been heard. In the circumstances of this case and without any opposition, I was prepared to accede to that application.
At the commencement of counsel’s final submissions a document entitled “Summary orders proposed by the ICL” was tendered which supported the parties having equal shared parental responsibility and on the basis that the children would live primarily with the father, they would spend time with the mother for two consecutive weekends out of every three weekends from 5pm Friday until 5pm Sunday (or 5pm Monday in the event of a public holiday), half school holidays and on special occasions (to be defined).
The ICL also sought orders of restraint and injunction directed to the parties and again, in the context of this case it is important that they are restated as follows:-
·Assaulting, harassing, threatening, intimidating, abusing or denigrating the other, the other’s partner or any other member of the other’s family, and from permitting any other person to do so;
·Communicating with the other parent save for any urgent or significant issue relating to the welfare of the children;
·Facilitating the children’s attendance upon any counsellor, therapist, psychologist, social worker or specialist health professional without the prior written consent of the other party;
·Without admission, physically disciplining any of the children, or from permitting any other person to do so;
·Without admission, consuming illicit substances or alcohol to excess for 24 hours prior to and during any period of time the children are in their care or from permitting any other persons to do so.
It is reasonable to assume that the proposed orders of restraint and injunction are in direct response to the evidence.
An unfortunate feature of this case is that for some time the siblings have been separated in that the eldest child resides with the father in his home and the younger children reside with the mother. The separated children have neither spent time with the other non-residential parent and perhaps of greater moment, are not spending time together as a sibling group.
The initial position of the father as reflected in the earlier orders sought by him is that C is now frightened of her mother and will not readily or easily transition into her care. The extent of the symbiotic relationship between C and her father looms large in the proceedings. Whilst not comprehensive of all of the issues, the extent to which the father and C had formed “an alliance” was central to the mother’s case.
The father denies the allegation and whilst agreeing that C is alienated from her mother, he considers that the child’s reluctance has its genesis in the mother’s destructive behaviour epitomised by family violence perpetrated by her partner, her use of illicit substances and her inability to impose routine certainty into her parenting of the children.
Whilst the ICL expressed misgivings as to the potentially damaging relationship between the father and C and the risk to the child of assuming an adult like relationship with the father, the potentially chaotic environment in the mother’s home places the children at risk. Moreover, it could not be said that the mother has undertaken to support the relationship between the younger children with either the father or C.
In respect of any difference between the parties in terms of their insight as to the damaging consequence of the siblings being separated, it is wafer thin.

PROCEEDINGS

The trial was listed for hearing in the Federal Circuit Court on 28 April 2015 and was transferred to the Family Court. The parties were represented by counsel with the trial commencing on 28 April 2015 and after four days of evidence, final submissions were received on 1 May 2015.
The Court was assisted by the parties including the ICL preparing comprehensive Case Outline documents.
The applicant father relied upon the following documents:-
(a)Initiating Application filed 6 January 2014;
(b)Trial Affidavit of the father filed 15 April 2015;
(c)Trial Affidavit of Mr I (paternal grandfather) filed 15 April 2015.
The mother relied upon the following documents:-
(a)Response filed 4 July 2014;
(b)Trial Affidavit filed 15 April 2015;
(c)Affidavit of Mr G (mother’s partner) filed 24 April 2015;
(d)Affidavit in Reply of mother filed 9 April 2015.
The ICL relied upon the following documents:-
(a)Affidavit of ICL (annexing Family Report of Ms P) filed 15 April 2015.
Whilst the proceedings are complex, much of the evidence focussed upon the circumstances surrounding the mother’s relationship with her current partner which involved the mother and the children in her care being placed in emergency accommodation following an alleged assault upon her, the existence of an Intervention Order and the subsequent reconciliation of the mother and her partner.
Following that alleged altercation in or about November and December 2014, a Judge of the Federal Circuit Court heard interim argument and determined that the eldest child should remain in the father’s care and the younger children should remain in the mother’s care.
On 13 March 2015 the father alleges that the mother and her partner attended at his residence and attempted to take the eldest child from the care of the paternal grandfather. During the altercation it is alleged that the mother and her partner assaulted both the child and the paternal grandfather. The younger children were apparently in the mother’s motor vehicle at the time.
The mother’s current partner was subsequently arrested and charged with aggravated assault against the paternal grandfather. No charges have yet been laid against the mother. The issue of the potential for criminal proceedings against the mother being instituted lead to an application for an Evidence Certificate pursuant to s 128 of the Evidence Act 1975 (Cth) (“Evidence Act”). Without any opposition, I granted a Certificate in relation to any oral evidence that the mother would be required to give in respect of the circumstances surrounding the incident on 13 March 2015. The mother made it clear that if asked questions about the incident under cross examination she would be reluctant to give a response unless she had the protection of a Certificate.
Moreover, I determined that the Certificate should not have any retrospective application. To the extent that the incident on 13 March 2015 has been the subject of affidavit material filed by the mother, I do not consider that a Certificate can apply to previously filed affidavits.
The evidence relied upon by the parties was appropriate and directly relevant to the issues requiring determination. I did not find that any of the evidence called was either irrelevant or unnecessary.

At the commencement of the proceedings I addressed the provisions of Division 12A of the Family Law Act1975 (Cth) (“the Act”) and in particular made reference to the principles as set out in s 69ZN for the proper conduct of a parenting case.
Neither party sought to be heard on objections to the affidavit material and notwithstanding a warning as to the extent that the parties could expect reliance upon annexures that were not the subject of cross examination, submission or reference, counsel understood that I would exercise my discretion to the extent that I would either consider or disregard evidence as presented.
I sought submissions from counsel as to whether exceptional circumstances were to be relied upon in terms of the application or otherwise of the provisions of s 69ZT. Notwithstanding that evidence that may be received which in the ordinary course would otherwise be inadmissible, it is a matter of weight that I may give to the evidence rather than its exclusion either in terms of the application of any part or portion of the Evidence Act or pursuant to Rule 15.13 of the Family Law Rules 2004 (Cth) in terms of my general ability to exclude evidence notwithstanding that the relevant provisions of the Evidence Act 1996 have been dispensed with.

BACKGROUND

The father was born in 1980 and is currently 35 years of age. The mother was born in 1981 and is 33 years of age. The father holds a bachelor degree. The mother had long-term employment as a phone consultant. She ceased employment coincident with the birth of each of the children. It is the mother’s intention to seek to enter a course of tertiary education.
Each of the parties has extended family. The mother has no relationship with her father. Her mother died in 2006. She has a brother who resides in Melbourne.
The father has a close relationship with the paternal grandfather. At this time, the father lives in with his father in his home and it is significant that the paternal grandfather plays an important role in the care arrangements for the eldest child and if orders are made as sought by the father, would continue in that role with the younger children.
The mother is mistrustful of the paternal grandfather and seeks orders that would see his unsupervised involvement with the children curtailed. She alleges that he is a strict disciplinarian to the children’s detriment. It is a strong concern of the mother that the orders proposed by the father would see the child Y spending substantial time under the supervision and care of the grandfather.
The parties married in 2006 and separated in April 2010. Following the separation, the father describes various attempts at reconciliation, in particular from early 2011. The father says that the attempted reconciliation of their relationship was ultimately unsuccessful and they separated and divorced in March 2013. The mother considers that the final separation occurred in late 2011. Accordingly, C and Z were both born during the parties’ relationship whereas Y was born after separation.
The father is frank and open as to the cause of the relationship breakdown and the parties’ irreconcilable differences.
The following explanation contained in the father’s trial affidavit is an appropriate summary:-
8.Our separation was caused by a number of issues stemming from both the mother and myself. One such reason was that during the course of our relationship I had a gambling problem and I also used marijuana on an occasional basis. Additionally, the mother was a frequent user of drugs including marijuana, ecstasy and, on occasion, cocaine. Such factors resulted in the irrevocable breakdown of our relationship.
9.I am deeply embarrassed by my own use of marijuana and say that I acknowledge that such behaviour is not appropriate. I have ceased using marijuana and no longer do so. I have also stopped gambling altogether. I have not taken any illicit substances or gambled for approximately two years.
The mother complains that it was the husband’s gambling which ultimately made it impossible for the parties to maintain an appropriate and stable family environment.
The mother alleges that the father’s gambling was chronic and in her words it was a “dreadful addiction”. She notes that the father appeared depressed at his financial predicament.
Given the admissions of the father, I suspect that tragically the mother’s assessment of the situation has proper basis.
For his part, the father alleges that the parties both engaged in the use of recreational illicit substances namely, marijuana, ecstasy and on his case, cocaine. Whilst he does not admit to the use of drugs other than marijuana he acknowledges that his behaviour was not appropriate.
The mother seeks to minimise her own use of drugs and whilst admitting her occasional use of marijuana, she alleges the father’s use of marijuana escalated to the point where he was ingesting the drug on a daily basis sometimes in the morning before work and certainly every day after work.
It is the mother’s observation that the father would also smoke methamphetamine and that his use of that drug seemed to increase in both frequency and intensity as his gambling addition intensified. A by-product of the downward spiral in which the father found himself was behaviour that became aggressive and unpredictable.
The mother alleges that whilst pregnant with Y she was assaulted by being punched in the face causing a blood-nose. Although allegedly reported to the police, the alleged assault was not pursued by her as a result of pressure from the father and his family.
The parties are not agreed as to the care arrangements during the course of the relationship. The father says that he contributed equally to the care, welfare and upbringing of the children and that he engaged in “normal parental activities and cherished every moment I spent with them”.
The mother was also employed although it was tailored to suit the mother’s maternity arrangements and parental obligations.
The father concedes that the mother had the primary care of the children but that they would spend time with him on a regular basis. The mother is less certain as to the care arrangements but I find that the mother was responsible for their primary care taking into account the circumstances that existed between the parties during the course of their relationship, it is likely that the mother was primarily responsible for C and Z during this time. Demonstrably the mother has maintained the primary parental role in respect of Y.
The father initiated proceedings on 6 June 2014. By that time any goodwill that existed between the parties had entirely evaporated.
The father considers that the mother was a regular user of methamphetamines and that her current partner is both a user of illicit substances but also has a significant criminal history involving convictions for violence. The catalyst for the proceedings appears to be the father’s allegation that the mother withheld the children from him but also that the mother was not able to properly protect the children, highlighted by an allegation that the maternal grandfather had taken photos of the eldest child naked. The father also places significant emphasis on a conviction that the mother received for driving whilst unregistered and under the influence of marijuana on 19 May 2014.
The mother is no less complimentary of the father during this period. The father concedes that following an altercation between the parties arising from an allegation that the eldest child had witnessed the mother engaging in sexual acts, she was assaulted by the father. He attended in Court and pleaded guilty to a charge of aggravated assault. He was ultimately discharged without conviction but was required to enter an 18 month good behaviour bond with an undertaking as to counselling.
The mother also alleges that the communication between the parties was poor in that the father’s language was abusive, derogative and was ultimately of such conviction that it should be described as family violence.
The advent of proceedings did not appear to significantly ameliorate the adverse behaviour of the parties.
Initial orders of the Court required the parties to each undertake drug testing. Each makes allegations against the other that a proper view of the test results should confirm that the parties are still using illicit substances. The father complains that notwithstanding the mother has received “one dirty drug test and two clean results” she can gain no comfort from the negative test results if they are considered against the background of the mother delaying the provision of a test sample once a request for the test was received by her. The mother asserts that even the positive test is not an indicator of current drug use but rather has picked up that she used marijuana one month prior to the test.
On 8 July 2014 orders were made that the children live with the mother and spend time with the father.
In November 2014 the father was advised that the mother and the children may be in emergency accommodation following an assault on her by her partner. Those matters reach their zenith in correspondence received from the mother’s solicitor confirming that as a result of an assault an intervention order has been obtained by the mother against her partner. By 26 December 2014 the mother and her partner had reconciled.
The concern of the father prompted an interim application to be filed seeking orders that the children live with him and that any time to be spent between the mother and the children should be on a supervised basis but under the strict condition that the children would not be removed from the care of the father save as ordered nor would the children be brought into contact with the mother’s partner.
On 4 February 2015 the parties agreed that the younger children should live with the mother and the eldest child with the father. It was intended that C, Z and Y would spend each weekend together in the alternating care of the parties. The orders were described in the notation to be a “holding arrangement” pending further interim argument.
The matter was listed for trial in the Federal Circuit Court on 28 April 2015 and in the interim the orders of 4 February 2015 were to continue.
The dispute between the parties escalated dramatically arising out of an incident that occurred on 13 March 2015 wherein the father alleges that the mother and her partner in the presence of the younger children attended without warning at the home of the paternal grandfather with the intention of taking the child C. The mother has a different version and denies the specific allegation that she assaulted C. The mother’s partner has been charged with assault against the paternal grandfather and at the date of hearing there is not yet any charges laid against the mother nor an indication as to whether it will occur. The father filed an Application in a Case on 18 March 2015 seeking orders that the children in the care of the mother be delivered up to him and that thereafter the mother’s time with the children be suspended. On the first return date of the application the Court suspended paragraph 1 of the orders dated 26 February 2015 but continued paragraphs 1 and 2 of the orders of 4 February 2015.
The effect of this order was that C remained in the care of the father with Z and Y remaining in the care of the mother. All time to be spent by a parent and the child or children not in their care was suspended.
The consequence of this order is that as and from 25 March 2015 (if not significantly before that date) the children have spent no time together as a sibling group nor have all of the children been in the care of the mother or the father.
The parties have not been able to come to any separate interim arrangement for the children to meet with each other.

PROPOSALS OF THE PARTIES

The parties are agreed that they should each have equal shared parental responsibility for the children. The position eventually adopted by the ICL is to support that agreement.
The parties are not agreed on the primary care arrangements. The ICL was supportive of the father having primary care but considered that the father’s proposal was unduly restrictive and may adversely impact upon a relationship between the children and the mother and in particular the youngest child. The proposal was that the mother should spend time with the children for two consecutive weekends out of every three weekends from 5pm Friday until 5pm Sunday, half school holidays and on special occasions as may be defined.
As already discussed the ICL considered it important that each of the parties be restrained in respect of certain specified behaviour involving the children.
Importantly, the orders proposed by the ICL did not contain any prohibition on the children coming into contact with the mother’s partner. Whilst the father’s criticism of her partner is unrelenting, the ICL considered that given that the mother is soon to give birth to a child of her relationship with her partner, it would be artificial and ultimately not in the interests of the children to craft orders which would enable the mother to spend time with the children on any meaningful basis but always in the absence of her partner.
In final submissions counsel for the father indicated that there had been a change in his position and that now the father agreed with the tenor of the orders as proposed by the ICL save and except the regularity and frequency that the children would spend time with the mother. In that regard and in a more expansive proposal, the father considers that the children should spend from Thursday after school to the commencement of school on Monday each alternate weekend. To the extent that arithmetic becomes a relevant consideration, the father’s proposal would see the children spending more time with the mother than is the resultant effect of the orders proposed by the ICL.
Additionally, the father has given consideration to the school arrangements for the children. The child C currently attends S Primary School at Suburb E. He currently pays the private school fees. C has attended her school for at least two years facilitated initially by the mother at her expense and of more recent date by the father at his.
Whilst geography is a further complexity of the proposals of each of the parties, the mother is prepared for C to remain at S school for the foreseeable future and certainly for the balance of the 2015 academic year.
The mother’s proposal would see the children residing in her primary care and spending from after school on Friday until 4pm on Sunday of each alternate weekend together with one half of school holiday periods in his care.
She seeks orders that would see the parties restrained from:-
(a) consuming any illicit drugs at any time that the children are in the care of that party;
(b) from consuming alcohol to excess or allowing any other person to do so in the presence of the children;
(c) from physically disciplining the children or allowing any other person to do so;
(d) from denigrating the other party in the presence of the children or allowing any other person to do so; and
(e) from harassing, abusing or interfering with the other party.
Whilst there is no mention of an injunction restraining the parties from involving the children with a counsellor, therapist, psychologist, social worker or specialist health professional in the absence of joint consent, neither of the parties speak against such an order.
It is also uncontroversial given the admitted history of the parties in respect of their use of illicit drugs and alcohol that such a prohibition would not be objectionable. Moreover, the behaviour of the parties towards each other and the readiness to which each of them, but the father in particular, resort to denigrating language would seem to recommend an order that would see the parties restrained from behaving otherwise than in a civil fashion towards each other and in particular in the presence of the children.
Accordingly and notwithstanding a complicated factual matrix, the dispute between the parties is of narrow compass and is distilled to a disagreement as to the primary care arrangements for the children and the extent to which the children spend time with each of the parties.
Pursuant to s 65DAA, in circumstances where the parties are to have equal shared parental responsibility for the children, I must consider firstly whether the child spending equal time with each of the parents would be in the best interests of the child but if not then whether the interests of the child would be better served by the child spending substantial and significant time with the parents. In either circumstance I am obliged to take into account the proposal of the parties and whether the proposed order is “reasonably practicable”.
Reasonable practicability has been set out in s 65DAA (5) as follows:-
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time with each of the child’s parents, the court must have regard to:-
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

EVIDENCE OF THE PARTIES

The Father

The father relied upon his trial affidavit of 15 April 2015.
In examination in chief the father asserted that C remained distressed by the incident on 13 March 2015 created by the mother and her partner attending at the home of the paternal grandfather. The consequence of the incident was now that C did not wish to spend any time with the mother.
Whilst the position has now apparently changed in terms of the orders that the father seeks, at the time of his evidence it was his position that the eldest child and the mother would require some form of counselling and the father hoped that the mother and the child would be able to reconcile their differences and resume a meaningful relationship. The father was clear in his opinion that the involvement of the mother’s partner would represent a significant impediment to a resumption of both a relationship and time spent.
The father considered that C presented as a mature child and developmentally advanced for her years. At every opportunity C would make it clear to the father that she did not wish to spend time with the mother if her partner was to be present.
The father considered that a sensible first step would be for C to spend time with the mother alone.
The child is also keen to be reunited with her siblings.
A theme that developed in the father’s evidence was the advanced knowledge that C possessed of the proceedings in general but in particular that the parties were attending Court with a view to determining parenting issues.
The father conceded that following the separation a private agreement was reached that the children would live with the mother and spend time with the father. It was some time after the divorce order was made that the father considered that the mother’s lifestyle was adverse to their proper care.
He admitted to a conversation with the children at which time they expressed that they did not want to return to their mother’s care because they were scared of her. After some reflection, the father agreed that the sentiment was expressed predominantly by C but to some limited extent by Z.
Notwithstanding a litany of concerns expressed by the children the father was content for the private arrangement to regulate the time the children would spend in each of their care. The acquiescence of the father is difficult to equate with the concerns allegedly expressed by the children and supported by his own observations namely that the mother was under the influence of drugs, the children were not wanting to return to her at the end of their time with the father, that she would leave the children alone in the home unsupervised and that she was unilaterally changing the childcare arrangements which would see the children being left in his care without warning or adequate notice.

When questioned as to why the father took no remedial action following his observations that the mother appeared adversely affected by illicit drugs and substances, the father’s response was that he resisted doing anything that was precipitous because he hoped that it was a “phase” that the mother was experiencing.
It was his own observation that by September 2013 there were less difficulties being experienced by the children and that he and the mother had achieved a civil relationship.
Towards the end of 2013 the father’s attitude changed. In giving this evidence, the father could not reconcile his conduct consequent upon C disclosing to him that she had allegedly witnessed the mother engaging in sexual intercourse. An altercation arose from that allegation and the father assaulted the mother. As discussed, he pleaded guilty and without a conviction being recorded entered into a bond to be of good behaviour for a period of 18 months. The children did not witness the assault.
It is difficult to assess the significance of the incident in terms of the effect on C. There is no evidence that the child saw the mother engaged in sexual intercourse. The mother is prepared to concede that the child witnessed her in an embrace with a person but not that they were engaging in any sexual activity.
Even if that had occurred, it is not suggested by the father even at the high water mark of his alleged concern that the mother either promoted or was wilfully blind to the possibility that the child might observe the mother engaging in a sexual act.
If the incident did occur as was allegedly reported by the child to the father there is no evidence that the mother was either reckless, wilful or deliberate in her conduct. Moreover, whilst C may have made a report to her father, there is no evidence that the child was necessarily adversely affected by what she had witnessed.
What did occur however was an unnecessary overreaction by the father and ultimately the mother. For his part, there could be no justification for his assault on the mother arising out of the alleged incident. His reaction was excessive, histrionic and dramatic. Notwithstanding the very real and damaging consequence of the family violence to which the mother was subjected, the further and ultimately more persuasive mischief is the clear effect of his conduct on C.
Whilst there may be earlier examples, this incident can be seen as the starting point for what the family consultant described as “an alliance” between the father and the child. I am in no doubt that the father pressed the child for information and am satisfied that C understood any recitation by her of matters pertaining to the conduct of her mother would be received and encouraged by her father.
To his credit, the father admitted his guilt and pleaded guilty. He says in evidence that this was and remains the only incident of violence.
Paragraphs 48 to 50 inclusive of the mother’s trial affidavit were put to the father. Specifically the allegation was that for no good reason on 26 April 2013 the father called the mother “a fucking slut”, on 16 June 2013 she was called “a fucking idiot” and on 8 June 2013 the father was again derogatory and referred to the mother as “a fucking useless idiot”.
The mother complains that the father sent her a “battery of text messages that were offensively calling me over and over again a shit Mum”.
The father was initially reluctant to admit his use of derogative language both directly to the mother and when referring to her. He specifically denied the allegation of poor language in respect of 26 April 2013, but does remember on 17 June 2013 calling her “a liar, a skank and a slut”. He also referred to her from time to time as “a fucking idiot”.
He denies that he ever referred to the mother as “a fucking bitch” and says that whilst his language at times may have been poor and ill-considered, it should be taken as indication of his increasing frustration with his mother’s unilateral and high-handed behaviour in respect of the children rather than any real intention to denigrate or demean her.
Annexure “DI4” to the father’s trial affidavit sets out a number of text message extracts between the parties from 5 September 2014 to 24 December 2014.
Whilst I accept that the tenor of the text messages is to complain about the mother changing the arrangements in respect of the children, there can be no explanation or justification for the derogatory tone and demeaning language readily used by the father.
The contrast between the relative civility of the conversation by the mother and the intimidatory language of the father is stark and instructive. There is no justification for the father to call the mother stupid or that she is a joke and that her behaviour will, “come back at you soon”.
The father was slow to recognise that his language and general behaviour towards the mother was likely to be offensive to her, frightening and certainly derogatory. Notwithstanding that the father ultimately agreed that this behaviour was inappropriate, it is a position that he adopts with demonstrable reluctance.
The import of his conduct requires a consideration of the extent to which the demonstrated family violence perpetrated by the father should influence the parenting orders by reason of the influence on the children.
The father admitted that he had been a regular methamphetamine and marijuana user until the end of 2012. Thereafter he has resisted further drug use.
The father alleges that the mother was regularly under the influence of drugs and was aggressive towards him and the children. Her behaviour was erratic and he says that she was incapable of a calm discussion. The summary of the father is that he would “give as good as he got”.
Consistent with his allegation that the mother is a regular methamphetamine user the father gave evidence that the mother would steal money from him and at one time had accessed his ANZ account. The father alleges that she asked for his help to get away from her partner but also for him to obtain methamphetamine drugs for her. It was put to the father that this allegation was a concoction.
In paragraph 62 of the father’s trial affidavit he sets out examples between September 2014 and December 2014 where the mother requested that the children remain in his care and/or in circumstances where she unilaterally changed the arrangements. Those changes were usually notable for the late notice that the mother gave.
The father was cross examined on these matters and whilst it might be said that some of the examples were taken out of context and in and of themselves benign, generally I considered that the father was convincing on this topic.
There was much focus on the interaction of the eldest child with the family consultant. I have already commented on the view expressed by the family consultant that C and the father were in an alliance against the mother. That issue prompted cross examination of the father in terms of the preparation if any for C prior to her engaging in the assessment process.
The father said that it was a very unsettling and unstable time and the child was living with the father but not seeing the mother. The father gave evidence that C would repeatedly ask him whether she would be made to see her mother.
The father told the child to tell the family consultant about her own feelings in particular her current life, instability and feeling unsafe with the mother and of the child’s concern that she has not seen her brothers. Overall the child was told to be “brave and honest” when dealing with the family consultant.
The father was challenged as to why this exhortation would be required. His response was that she had often told him that she was frightened of the mother and her partner and accordingly in terms of her fear it was the father’s position that she should be “brave”.
Somewhat disturbingly, it was revealed in evidence and under cross examination the child C had kept a journal. The father admitted that he told her to keep a journal as and from July 2014. He suggested that she include in the journal details of how she felt but denied that he would tell her what to write. I found the father’s evidence on this topic to be unimpressive. I have little doubt that the focus of the journal was not as part of the normal day to day development of a seven year old but rather to inculcate the child into the litigation and to provide a basis for allegations made by the father and directed against the mother.
Irrespective of the observations of Ms P, I find that the father has allowed the child to be involved in the conflict with the mother at a level that could not be considered in the child’s best interests.
The father was also cross examined as to his conduct following his advice that the mother had been apprehended for driving unregistered and whilst under the influence of drugs. The police contacted the father and he came and collected the children. At that stage, the father did not know the entirety of the circumstances in respect of the mother’s conduct. It was only revealed during cross examination that the mother had been first apprehended on 19 May 2014 and then for the same offence and coincidentally by the same police officer on the following day.
Whilst it is difficult for the mother to place a favourable gloss on her conduct, the complaint under cross examination was that the father readily engaged the school in what had happened. It was put to the father that he was opportunistic in seizing upon the mother’s conduct, poor driving and police apprehension for him to determine that he should collect the children and keep them.
The father however responded by way of an appropriate explanation namely, that if the mother had not been apprehended by the police then the consequence of her actions would have been that on two consecutive days she would have potentially been driving with the children in an unregistered vehicle and in a drug affected state.
The father gave evidence of his current circumstances. He advised that he had reduced his hours of employment to 9 am to 2.30 pm Monday to Friday which enables him to potentially drop the children off at school and collect them at the conclusion.
He currently resides with the paternal grandfather and whilst it is not intended that this will be permanent, the accommodation is entirely adequate for the family. He agreed that from time to time his father would help with the management of the children.
Whilst he did not have a regular role in picking up the children to or from school or in respect of their various social engagements on occasion the paternal grandfather had assisted.
The father agreed that the last time he saw the youngest children was the end of February 2015 whereas the mother had not seen the eldest child since 13 March 2015.
The father remained concerned about the mother’s household and the environment in which the children find themselves. He is scathing in his condemnation of the mother’s partner and refers to advice given to him by letter dated 22 December 2014 from the mother’s solicitors advising that she was the subject of domestic violence at the hands of her partner. The father retained the children and notwithstanding the advice from the mother’s solicitor that there was now an interim violence order against Mr G and that the mother had been able to obtain appropriate accommodation for herself and the children, the father refused to return them to her care.
I consider that notwithstanding the misgivings of the father in respect of the conduct of the mother’s partner he was more concerned about pressing home an advantage in respect of the litigation rather than reflecting upon the need for the children to maintain a relationship with their mother.
In June 2014 the mother advised the father that the maternal grandfather was being investigated by SAPOL for photographing the eldest child naked.
The father alleges that as a result of the investigation he was advised by the police to seek counselling for C. He attempted to discuss this with the mother but it is his evidence that she would not discuss it with him.
After what he says was the mother’s refusal to consider counselling he eventually prevailed upon Ms K attached to the X Hospital to undertake counselling with the child.
The history and pattern of the child’s involvement with Ms K is unclear and it is somewhat unsatisfactory that the father did not consider that it was necessary for the Court to hear from Ms K, notwithstanding her considerable involvement with the child C.
According to the father, and notwithstanding the therapeutic involvement, C remained scared and petrified to see the mother.
Generally I accept the father’s evidence in relation to the day to day arrangements and management of C. It is clear that the father was able to provide a stable environment for the children. I do however find that it is more likely than not that the father embarked upon a strategy to undermine C’s relationship with the mother and to reinforce in the child a negative view of mother and her partner. The child was exposed to adult concepts and issues when it was not appropriate for that to occur.
I also consider that the father engaged in aggressive, demeaning and intimidating behaviour in his dealings with the mother although I do not overlook the credit that should be given to his plea of guilty when charged with the offence of aggravated assault.
I suspect that the father now has a better understanding of the damaging consequence of domestic violence on his children and his ability to provide an admirable role model for them.

Mr I

This witness is the paternal grandfather. He relies upon his affidavit filed 15 April 2015. The focus of his evidence is in respect of the incident that occurred on 13 March 2015 at his home when the mother and her partner attended and attempted to either speak to and/or take C from him.
In summary, his evidence is that on Friday 13 March 2015 he collected C from school because he understood that the father would attend the V Primary School and collect the younger children.
The grandfather arrived at home with the child at approximately 3.10 pm and it is his evidence that he heard C screaming for help and observed the mother and her partner were present. Whilst it is a matter of contention, he says that he observed the mother attempting to pull C to the car.
He intervened and he alleges that the mother’s partner said words to the effect of :-
Leave her the fuck alone, she is pregnant.
The situation worsened and the altercation between the grandfather, the mother and her partner was observed by a neighbour who then determined to intervene.
The precise procession of events is somewhat uncertain but there is no doubt that C was distressed. To some extent it is irrelevant that the mother’s partner was ultimately charged with assault.
Ultimately it appears that the mother may have recognised albeit belatedly, that her conduct and that of her partner was inappropriate but more importantly C was upset and fearful.
The grandfather then observed the mother and her partner to leave the premises, noting that the younger children were in her car.
The police were called, statements were taken and the consequence of the incident was not limited to the charge of assault and the intervention order taken out by the grandfather, but as a result the father then brought proceedings which resulted in an order that suspended time by each of the parties in respect of the child and children in the other’s care.
I accept the evidence of the maternal grandfather and find him to be a witness of truth.
It could not be said that it was beyond the ability of the mother to recognise that her attendance was likely to cause distress and heightened conflict. Whilst I am certain it was not her intention it was almost an inevitable consequence.
The mother opposes the children spending unsupervised time in the care of the grandfather. She alleges that he is overly strict with the children and has disciplined C by repeatedly smacking the children and sending them to their rooms. The mother reports an allegation from Z that on occasion Y would be required to remain in his room all day with the door locked and no food provided.
I do not accept that it is open to the mother to hold that she has grave concern on occasions when the children are in the grandfather’s care.
I do not consider that the reports of the children (if given) can be relied upon and in any event the mother’s allegations were not the subject of substantial challenge to the grandfather under cross examination. He denied that he had ever smacked the children, had ever used a wooden spoon or sent the children to their rooms for any extended period.
I regard the allegations made by the mother as unreliable and I accept the evidence generally given by this witness.

The Mother

The mother relies upon her trial affidavit of 15 April 2015 and her reply filed 9 April 2015 to the father’s trial affidavit. The mother was challenged in cross examination as to her reactions following the revelation that her father had taken pictures of C naked.
The mother was clearly appalled by the assertion of her father’s inappropriate conduct. I am satisfied that she reacted with appropriate alacrity and contacted the police. She was co-operative with them and provided her father’s laptop and phone.
She was aware that there was an issue raised as to counselling and was keen to explore whatever assistance C may properly require. She was however reluctant to follow through with the appointment on Ms K because by this time she became aware that the father had made the child speak to a number of different people. It was the mother’s evidence that she was concerned to the degree of which the father had involved the child.
The mother denies that C exhibited sexualised behaviour and it was her opinion as expressed to the family consultant that C should be quarantined from the adult conflict. Her words summarised the position namely, that C “just wants to be a little girl”.
The mother was questioned as to her current living arrangements. She is demonstrably pregnant and it is her position that she and her partner will move from Suburb U to Suburb M, or perhaps a suburb closer to the father.
At present the distance between the parties is about 45 to 50 minutes travelling time. It is a burden on the mother but she considers that she and the father will find an appropriate arrangement for the handover and care of the children.
It is her preference that the children all attend at the same school and whilst it is to her disadvantage in terms of distance, she is content for the elder child to remain at S School, Suburb E. It follows without much deliberation that Z should attend the same school as C. He has only attended his current school for two terms and both parties agree that the transition of Z to a new school will be without difficulty.
The report of the family consultant recorded a telephone interview with Ms B, psychologist. The information obtained was that the mother had attended consultations with Ms B for a little over 12 months between 2013 and 2014. C and Z had also attended. The family consultant records that the reason for the referral was “parenting assistance in relation to [C’s] and [Z’s] emotional and behavioural issues”.
The family consultant then sets out the observations of Ms B as to the mother, C and Z. It is in the report of the mother to Ms B that she denies C having witnessed any sexual intercourse by the mother and another person.
She was challenged under cross examination as to why it was necessary for the children to be taken to a psychologist. The mother’s evidence on this topic was confused. She seemed to justify the children being taken for counselling not because they displayed any behaviour that would have warranted intervention but rather that because the father was hyper-vigilant in relation to any complaint that the children might raise, she considered it necessary to pre-empt the father’s reaction and act out of an abundance of caution.

It is unfortunate that the mother’s partner is still the subject of criminal proceedings in the sense that it provides an unnecessary distraction and focus for the parties and does not yet enable them to resume an appropriate civil and cordial relationship focussed on the children.

Section 60CC (3) (g) (h) and (i)

The application of these sections is irrelevant to the matters that I have to decide.

Section 60CC (3) (j) and (k)

Much has been said in respect of family violence. It is noted that there is still an intervention order in place as between the mother and her partner. That order does not impact the orders that each of the parties is seeking or that are necessarily promoted by an application of the matters as set out in Part VII of the Act.
Family violence however is relevant and has featured centrally to the conflict between the parties.
It is only because I consider that the parties have taken appropriate steps to modify their behaviour, that the proceedings may have caused them to gain some insight into the deleterious effect that family violence has on the children and because each of the parties appears willing to submit themselves to ongoing counselling that hopefully their aggressive conduct towards each other will not reappear.

Section 60CC (3) (l) and (m)

Ultimately I was satisfied that the parties are able to put their differences behind them. This is self-evident from the orders that each of them seek and in particular the position adopted by the father that is less oppositional to the involvement of the mother’s partner.
It is important for the children that the proceedings are brought to an end and that orders are made that have a greater chance of resolving ongoing differences.
The agreement between the parties that the children will attend the same school cannot be overstated. It is an important and significant step and will see the children resume a sibling relationship with each other and hopefully require a civil transfer between the children and each of the parties.

CONCLUSION

The parties agree that they each have equal shared parental responsibility for the children. They therefore contend that such an arrangement is in the children’s best interests. I have given careful consideration to the factors as set out in s. 60CC both as to primary and additional considerations. I am satisfied to make orders for parental responsibility as sought by the parties.
I am then obliged to consider whether the children should spend equal time with each of the parents and whether such an outcome would be reasonably practicable. If so found, then I should consider making such an order.
Notwithstanding that the family consultant speaks against such an outcome, I do not find that she does so with great conviction. Her own recommendations would see the children living primarily with the father but spending five nights a fortnight and half school holidays with the mother. It seems to me that if such an arrangement is to work and have practical effect, it will require the self-same considerations that equal time would necessarily dictate.
Moreover, the parties are agreed as to the children’s school and whilst there are factors weighing in favour of the primary care to the father namely, it is likely he is a more organised parent, there are also factors weighing in favour of the mother, in particular that she has had the primary care of the children noting the likelihood of significant attachment with the youngest child.
There are lingering concerns as to the aggressive behaviour of the mother’s partner but equally I cannot ignore the family violence that was a feature of the father’s presentation in the past.
I cannot say that it is not in the best interest of the children to make an order that the children spend equal time with the parties. The uncertainty of ordering the primary care of the children with either the mother or the father is not able to be easily dispelled.
There are encouraging signs that once the proceedings are concluded the parties will be able to reconcile their differences. I consider that the children spending equal time with each of the parties will strike an appropriate balance. It will enable each of the parties to properly partake in the parenting arrangements of the children, but will also assist the mother in better organising her household particularly given the imminent birth of her child.
I propose to make orders that there be a graduated time regime which will see C remaining primarily in the care of her father and Z and Y remaining in the primary care of the mother but graduating towards equal time across the balance of 2015, with equal time being achieved at the commencement of 2016.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and seventy one (371) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 May 2015.

Associate:

Date: 14 May 2015

[2015] FamCA 350

14 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies