Kappas and Drakos
[2015] FCCA 147
•29 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAPPAS & DRAKOS | [2015] FCCA 147 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – who the children are to live with – should the children be separated – how much time should the children spend with a parent – failure of the parents to communicate. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65D and 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 Elspeth & Peter [2006] FamCA 1385 R & R: Children’s Wishes (2000) FLC 93-000 Chappell & Chappell [2008] FamCAFC 143 Newlands & Newlands (2007) 37 Fam LR 103 Sieling & Sieling (1979) FLC 90-627 |
| Applicant: | MS KAPPAS |
| Respondent: | MR DRAKOS |
| File Number: | SYC 397 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 15, 16 May 2014, 4 & 5 August 2014, 12 December 2014 |
| Date of Last Submission: | 12 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2015 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Solicitors for the Respondent: | Rowley & Associates |
THE COURT ORDERS THAT:
By consent, all previous orders about [X] born [omitted] 1998 currently 16 years of age (“[X]”) and [Y] born [omitted] 1999 currently 15 years of age (“[Y]”) (“the children”) are discharged, including the order for the appointment of the Independent Children’s Lawyer.
By consent, until each child attains the age of 18 years, his passport shall remain in the registry of this Court and his name shall remain on the Airport Watchlist, unless and until the parents agree otherwise in writing, or by further order of the Court.
The mother shall have sole parental responsibility for decisions about long term issues for the children.
The children shall live with the mother, except when they are spending time with the father pursuant to these orders.
The children shall spend time with the father as follows:
(a)During school terms, starting in the first week:
(i)Both children: on alternate weekends: from 10.00am Saturday until the commencement of school on Monday.
(ii)[X]:
A.At any other time in accordance with his wishes.
(iii)[Y]:
A.On any day when he has out-of-school sports training: from after school until 8.30pm.
B.Upon his turning 16 years, at any other time, in accordance with his wishes.
(b)During the short term holidays: from 4.00pm on the first Saturday until 4.00pm on the following Saturday.
(c)During the December/January school holidays: from noon on 31 December until 7.00pm on 7 January and from noon 14 January until 7.00pm on 21 January.
(d)By consent, on every Father’s Day: from 10.00am to 7.00pm if the children otherwise would not be spending time with the father on that day.
With respect to [Y]’s activities in competition sport:
(a)At the commencement of each sports season, the father shall advise the mother of all times and places when [Y] is required to attend for training or weekend games.
(b)The mother shall ensure that [Y] attends any games during the weekends when he is living with her.
(c)If the mother is unable to take [Y] to a weekend game when [Y] is living with her, she shall advise the father, and in that event, at the mother’s election, the father shall at the agreed time collect [Y] and at the conclusion of the game, the father shall return [Y].
Changeovers shall be:
(a)by consent, at Mc Donalds [R];
(b)by the father delivering the children to a location no closer than 200 metres from the children’s school, being the [B] School, on a Monday morning;
(c)on [Y]’s sports training days, in lieu of (a) above, the father shall collect [Y] from the bus stop at [omitted];
(d)effected by the father not parking his car within 30 metres of the mother’s car in the said McDonald’s car park area.
By consent, if the children are scheduled to spend time with the father on Mother’s Day, time with the father is suspended and the children will remain in the mother’s care for the duration of that weekend.
That the children spend time with the mother from the conclusion of school on the Thursday before Greek Orthodox Easter until the commencement of school on the following Monday (if Greek Orthodox Easter falls during the school term) or 10.00am on Monday (if Greek Orthodox Easter falls during the school holidays) and any order that is inconsistent with this order is suspended so as to permit this time to occur.
That the children spend time with the mother from midday on Christmas Eve until 7.00pm on 27 December each year, and any order that is inconsistent with this order is suspended so as to permit this time to occur.
By consent, that the father complete Unifam’s “Keeping Contact – Parenting Orders Program” within 6 months of the date of these orders, noting that the mother has already completed that course and the father has enrolled in that course.
That the parent who has the children (or either of them) in their care at the time of any sporting, social, co-curricular activity in which the children (or either of them) are involved is responsible for transporting the children (or either of them) to and from that activity.
By consent, that each parent be and is hereby restrained from using physical punishment, threats of violence or insulting, belittling or using derogatory language towards the children (or either of them).
By consent, that each parent be and is hereby restrained from making insulting, belittling or derogatory comments to the other parent or any member of the other parent’s family, or about the other parent or any member of the other parent’s family, in the presence or hearing of the children (or either of them).
That each parent communicate with the other only by text message and/or email.
By consent, that each parent be civil and courteous in their communications and not include in any correspondence between them, anything that is not directly related to the care, welfare and development of the children (or any of them).
By consent, neither parent shall do anything to prevent a child from having telephone communication with the other parent at any reasonable time and neither parent shall seek access to, or otherwise interfere with any electronic device belonging to a child.
If a child requires emergency medical attention for illness or injury, the parent having care of the child at that time shall immediately advise the other parent and provide the other parent with details of the medical practitioner or facility where the child is receiving attention.
By consent, neither parent shall discuss the proceedings with the children or either of them.
By consent, the parents shall not communicate with each other about parenting matters by sending messages through the children or either of them.
The matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Kappas & Drakos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 397 of 2012
| MS KAPPAS |
Applicant
And
| MR DRAKOS |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed 22 April 2014 and as varied by the mother’s adoption of a number of the orders as sought by the Independent Children’s Lawyer, the mother seeks final parenting orders in respect of the children of the relationship, [X] born [omitted] 1998 currently 16 years of age (“[X]”) and [Y] born [omitted] 1999 currently 15 years of age (“[Y]”) (together described as “the children”) as follows:
(1)The children spend time with the father as follows:
(a)During school terms, starting in the first week and continuing during all school holiday periods:
(i)Both children: on alternate weekends from 10.00am on Saturday until 8.00pm on Sunday.
(2)Changeovers to be effected by the mother, but if she is unable to do so, by her designated nominee, such nominee to include her partner, Mr R.
(3)The children’s time with the father during the Greek Orthodox Easter is to be suspended.
(4)That, except for communication taking place in accordance with the parenting orders and/or contact necessary to facilitate the children’s time with the father pursuant to the said orders:
(a)The father is hereby restrained from contacting, approaching or coming into contact with the mother, the mother’s current partner, Mr R, the mother’s child with Mr R, [Z] born [omitted] 2013, or the children (or either of them) in any way, including, but not limited to coming within 500 metres of :
(i)The mother’s residence at [omitted]; and/or
(ii)The children’s school, [B] School.
(b)This is an injunction pursuant to s.68B of the Family Law Act 1975 (“the Act”) for the personal protection of the mother, the mother’s current partner, Mr R, the mother’s child with Mr R, [Z] born [omitted] 2013 and the children (“the protected persons”) to which S.68C of the Act applies such that, if a police officer believes on reasonable grounds that the father has breached this injunction by:
(i)Causing, or threatening to cause, bodily harm to the protected persons; or
(ii)Harassing, molesting or stalking the protected persons;
the police officer may arrest the father without warrant.
The mother agreed that the balance of the orders initially sought by her had been largely superseded by the proposed orders of the Independent Children’s Lawyer as set out below.
The Respondent father sought his own parenting orders in addition to orders which he had then agreed to from the Independent Children’s Lawyer’s proposal as follows:
(1)That the parties have equal shared parental responsibility for the children.
(2)That [X] live with the mother and spend time with him every weekend and two days during the week.
(3)That [Y] live with the father and spend time with the mother every second weekend.
The Independent Children’s Lawyer sought the following parenting orders, as set out in Exhibit “ICL2”:
(1)All previous orders about the children are discharged, including the order for the appointment of the Independent Children’s Lawyer.
(2)Until each child attains the age of 18 years, his passport shall remain in the registry of this court and his name shall remain on the Airport Watchlist, unless and until the parents agree otherwise in writing, or by further order of the Court.
(3)The mother shall have sole parental responsibility for decisions about long term issues for the children.
(4)The children shall live with the mother, except when they are spending time with the father pursuant to these orders.
(5)The children shall spend time with the father as follows:
(a)During school terms, starting in the first week:
(i)Both children: on alternate weekends: from 10.00am Saturday until the commencement of school on Monday.
(ii)[Y]:
1. On any day when he has out-of-school sports training: from after school until 8.30pm.
2. During any period when [Y] does not have sports training: from after school until 8.30pm on Wednesdays.
(b)During the short term holidays: from 4.00pm on the first Saturday until 4.00pm on the following Saturday.
(c)During the December/January school holidays: from noon on 31 December until 7.00pm on 7 January and from noon 14 January until 7.00pm on 21 January.
(d)On every father’s day: from 10.00am to 7.00pm if the children otherwise would not be spending time with the father on that day.
(6)With respect to [Y]’s activities in competition sport:
(a)At the commencement of each sports season, the father shall advise the mother of all times and places when [Y] is required to attend for training or weekend games.
(b)The mother shall not attend any of [Y]’s training sessions.
(c)The mother shall be at liberty to attend any weekend games in which [Y] is playing.
(d)The mother shall ensure that [Y] attends any games during the weekends when he is living with her.
(e)If the mother is unable to take [Y] to a weekend game when [Y] is living with her, she shall advise the father, and in that event, at the mother’s election, the father shall at the agreed time either collect [Y] from the mother’s residence or from McDonalds restaurant at [R], and at the conclusion of the game, the father shall return [Y] to the mother’s residence or McDonalds restaurant at [R].
(7)Changeovers shall be at Mc Donalds [R], except on [Y]’s sports training days, when the father shall collect [Y] from the bus stop at [omitted] and return him to the mother at McDonalds Restaurant, [R].
(8)If the children are scheduled to spend time with the father on Mother’s Day, time with the father is suspended and the children will remain in the mother’s care for the duration of that weekend.
(9)That the children spend time with the mother from the conclusion of school on the Thursday before Greek Orthodox Easter until the commencement of school on the following Monday (if Greek Orthodox Easter falls during the school term) or 10.00am on Monday (if Greek Orthodox Easter falls during the school holidays) and any order that is inconsistent with this order is suspended so as to permit this time to occur.
(10)That the children spend time with the mother from midday on Christmas Eve until 7.00pm on 27 December each year, and any order that is inconsistent with this order is suspended so as to permit this time to occur.
(11)That the father complete Unifam’s “Keeping Contact – Parenting Orders Program” within 6 months of the date of these orders and attend and complete that course, noting that the mother has already completed that course and the father has enrolled and is due to commence it on 17 June 2014.
(12)That the parent who has the children (or either of them) in their care at the time of any sporting, social, co-curricular activity in which the children (or either of them) are involved is responsible for transporting the children (or either of them) to and from that activity.
(13)That each parent be and is hereby restrained from using physical punishment, threats of violence or insulting, belittling or using derogatory language towards the children (or either of them).
(14)That each parent be and is hereby restrained from making insulting, belittling or derogatory comments to the other parent or any member of the other parent’s family, or about the other parent or any member of the other parent’s family, in the presence or hearing of the children (or either of them).
(15)That each parent communicate with the other only by text message and/or email.
(16)That each parent be civil and courteous in their communications and not include in any correspondence between them, anything that is not directly related to the care, welfare and development of the children (or any of them).
(17)Neither parent shall do anything to prevent a child from having telephone communication with the other parent at any reasonable time and neither parent shall seek access to or otherwise interfere with any electronic device belonging to a child.
(18)If a child requires emergency medical attention for illness or injury, the parent having care of the child at that time shall immediately advise the other parent and provide the other parent with details of the medical practitioner or facility where the child is receiving attention.
(19)Neither parent shall discuss the proceedings with the children or either of them.
(20)The parents shall not communicate with each other about parenting matters by sending messages through [X] or [Y].
The father provided his written consent to a number of the orders as sought by the Independent Children’s Lawyer and recorded in terms of Exhibit “ICL3”. The father consented to orders 1, 2, 5(d), 8, 9, 11, 13, 14, 16, 17, 19 and 20 of the orders set out in paragraph 3 above.
The mother provided her oral consent to a number of the orders as sought by the Independent Children’s Lawyer being orders 1, 2, 3, 4, 5(d), 7 (excluding [Y]’s sports training days), 8 (including Greek Orthodox Easter – in substitution for order 9), 10, 11, 13, 14, 15, 16, 17, 18, 19 and 20. The mother sought that the times in 5(a)(i) be from 10.00am Saturday until 8.00pm Sunday with 5(b) and (c) continuing during school terms.
Accordingly, to the extent that the parties have reached agreement in terms of paragraphs 4 & 5 above, such orders will be made by consent.
The Court sets out a brief litigation history of this matter as follows:
a)In September 2006, the parties separated.
b)On 30 October 2007, the parties were divorced.
c)In 2007, parenting and property proceedings were commenced in the Family Court of Australia at Newcastle.
d)On 18 August 2008, parenting orders were made by consent to the following effect:
i)The parents to have “equal joint shared parental responsibility” for long-term decisions for the children.
ii)The children to live with the mother.
iii)The children to spend time with the father:
1. On alternate weekends, 6.00pm Friday until 6.00pm Sunday
2. In alternate weeks from 3:30pm until 8:30pm on any weekday nominated by the father, after completion of certain Apprehended Violence Order (“AVO”) proceedings.
3. On alternate Christmas Days/Boxing Days
4. On Fathers’ Day.
iv)Changeovers at Mc Donalds [R].
e)On 25 January 2012, the mother filed an Initiating Application, seeking orders for [Y] to be returned to live with her.
f)On 1 February 2012, orders were made as follows:
i)[Y] to be returned to the mother at [omitted] Police Station that day.
ii)The parties to comply with the orders of 18 August 2008.
iii)Directions for the parties to file and serve Amended Applications and Response documentation.
iv)The parties to attend a Child Dispute Conference.
g)On 20 February 2012, a Child Dispute Conference was held with a Family Consultant, Ms B.
h)On 24 February 2012, orders were made as follows:
i)An Independent Children’s Lawyer was appointed for the children.
ii)The orders of 18 August 2008 were varied so as to remove the order which provided for the children’s time with the father in alternate weeks from 3:30pm to 8:30pm on any weekday nominated by him.
iii)For [Y] to spend time with the father for [sport] training from 5:40pm to 8.00pm on Tuesdays and Thursdays, with changeovers at [R] McDonalds.
iv)For [X] to spend time with the father each Wednesday, from 5:40pm to 8.00pm, with changeovers at [R] McDonalds.
i)On 27 February 2012, the mother filed a Contravention Application and an Application in a Case seeking the following parenting orders:
i)For the mother to have sole parental responsibility for the children.
ii)For the children to spend no time with the father until a psychiatric examination finds him fit to care for the children.
iii)For the father to immediately return [Y] to the mother’s care.
j)On 12 March 2012, orders were made as follows:
i)For [Y] to be returned to the mother at 6.00pm that day at Mc Donalds [R].
ii)The mother’s contravention application filed 27 February 2012 was withdrawn & dismissed.
iii)A family report to be prepared.
iv)Pending further order:
1. Sole parental responsibility for the children to the mother;
2. The children to live with mother.
3. The children’s time with the father to be suspended.
k)On 19 June 2012, the report dated 25 May 2012 of Dr B, (being the family report writer), was released to the parties.
l)On 13 July 2012, the Court made further interim orders to the following effect:
i)The children to spend time with the father each alternate weekend from 9:30am Saturday until 6.00pm Sunday with changeovers at Mc Donalds [R].
ii)The father to be at liberty to attend [Y]’s [sport] training each Thursday evening from 5:30pm to 7.00pm, with the mother to deliver and collect [Y] from the training venue but, otherwise, remain absent from the venue.
m)On 3 August 2012, the Court made, further, interim orders to the following effect:
i)The children to continue to spend time with the father in accordance with the orders made on 13 July 2012.
ii)The father to be restrained from being within 100m of the mother’s car, at any time.
iii)The mother to remain in her car when she delivers [Y] for [sport] training.
iv)The father to be restrained from entering the street in which the mother and the children live, at any time.
v)Directions for a hearing listed on 12 September 2012 before Federal Magistrate Sexton (as she then was).
n)At the hearing on 12 September 2012 before Federal Magistrate Foster (as he then was), as his Honour had been listed to then hear the matter, the parents and the Independent Children’s Lawyer had discussions. The mother appeared unrepresented. The parents consented to a number of orders proposed by the Independent Children’s Lawyer and the matter was then stood over to 13 September 2012 for orders to be made and for certain other issues to be determined by the Court, including time for each child to spend with the father mid-week and for time with the father during Christmas school holiday periods.
o)On 13 September 2012, interim orders in relation to the children were made, by consent, to the following effect:
i)The parents to have equal shared parental responsibility, except as, otherwise, provided by the orders.
ii)If the parents are unable to agree about a parenting decision with respect to non-emergency medical treatment, then they shall both seek the advice of the children’s General Practitioner and follow the recommendations of that General Practitioner.
iii)The children live with the mother and spend time with the father.
iv)The children to spend time with the father as follows:
1. During school terms on alternate weekends from after-school Friday until 7pm Sunday (and with [Y] on the first day in each week when he has out of school sports training from after school until 8.30pm);
2. From 11.00am on the first Saturday until 7.00pm on the following Sunday during short school term holidays;
3. From noon on 31 December until noon on 18 January during the December/January school holiday period;
4. Every Father’s Day from 10.00am to 7.00pm.
5. On each of the children’s birthdays from 3.30pm until 8.00pm.
p)On 21 September 2012, further interim orders were made by Federal Magistrate Foster (as he then was) to the following effect:
i)[Y] to spend time with the father each week from after school on a further sports day until the commencement of school the following day, otherwise overnight Wednesday.
ii)[X] to spend time with the father on alternate Fridays from 4.00pm to 10.00pm, or overnight if [X] wishes.
iii)The proceedings be adjourned to 16 September 2013 for a directions hearing.
q)On 16 September 2013, the matter was then listed for final hearing on 15 & 16 May 2014 with an updated report from Dr B and trial directions given. Orders were made authorising the mother to obtain passports for the children, without the father’s consent, with the passports to be lodged with the registry of the Court and a restraint made against the children from leaving the Commonwealth of Australia together with an Airport Watchlist order made for a period of 2 years. The mother was, further, directed to file any application with respect to overseas travel and the father directed to file a response. The matter was then listed for mention on 23 October 2013.
r)On 21 October 2013, the mother filed an application in a case seeking an order that the father’s time with the children be suspended.
s)On 23 October 2013, the mother’s application in a case filed 27 September 2013 for the children to travel overseas was listed for hearing on 12 November 2013.
t)On 12 November 2013, the Court made, inter alia, the following orders:
i)The children’s names were removed from the Airport Watchlist; and an order permitted the mother to take the children to Malaysia and Singapore from 16 November 2013 until 2 December 2013;
ii)Thereafter, the children’s names were to again be placed on the Airport Watchlist.
iii)The children’s passports, held by the Registry, were to be released to mother upon her lodging a Certificate of Title to her property, and a transfer of her interest in the said property to the father for nil consideration as security for the return of the children.
iv)A declaration, by consent, to the effect that the children’s habitual place of residence was Sydney, NSW, Australia.
v)The father was directed to file a Notice of Address for Service within 7 days.
vi)The Independent Children’s Lawyer was directed to advise the father of the substance of the orders made given that he had left the Court and not returned, shortly before the orders were made.
vii)The matter was adjourned to 20 February 2014 for mention.
u)On 19 February 2014, by chambers order the mention date of 20 February 2014 was vacated and the matter was then listed on 7 April 2014.
v)On 25 March 2014, Dr B’s updated family report dated 24 March 2014 was released to the parties.
w)On 7 April 2014, the Court extended the time for filing trial affidavits, noting that the matter was listed for final hearing on 15 May 2014 and made, by consent, orders for the parties to attend a family law legal aid resolution conference, to be held prior to the hearing date.
x)On 15 May 2014, the hearing commenced with both parties self-represented and Ms Fallon of Counsel representing the Independent Children’s Lawyer. Dr B gave evidence and the mother commenced her evidence.
y)On 16 May 2014, the mother’s evidence was not concluded and the proceedings were adjourned for further hearing commencing on 4 August 2014.
z)On 4 & 5 August 2014, the parties’ evidence was taken and the matter was then adjourned to a date to be fixed for oral submissions, given the need to obtain a transcript of the evidence electronically recorded in Exhibit “G”.
aa)On 12 December 2014, the Court heard the parties and the Independent Children’s Lawyer’s submissions and reserved its decision.
Evidence
The mother relied on:
a)Her Affidavit sworn and filed on 22 April 2014;
b)Affidavit of Mr R sworn / affirmed and filed on 22 April;
The father relied on:
a)His Affidavit sworn and filed on 9 April 2014;
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Second expert report of Dr B
24/3/14
Court
Court 2
First expert report of Dr B
25/5/12
Court
A
4 pages of photographs and text messages
Mother
B
Bundle of documents containing text messages and photographs
Mother
C
Bundle of documents including 4 statements in respect of Apprehended Violence Order (“AVO”) proceedings
Mother
D
Various text messages and correspondence from NSW Health and the Child Support Agency and Mother’s Unifam Counselling Certificate dated 17 July 2014 “Talking with your kids”
Mother
E
DVD of a film recorded by Mr R on his mobile phone
Mother
F
Further 6 pages of text messages
Mother
G
Mobile Iphone of Mr R recording a telephone call asserted to be from the father to the mother on her mobile phone
Mother
1
Father’s Unifam Counselling Certificate “Talking with your kids”
17/6/14
Father
2
Provisional Restitution Order
24/7/14
Father
ICL1
Google map of Mc Donalds [R]
ICL
ICL2
Minute of proposed order of the Independent Children’s Lawyer
ICL
ICL3
The father’s agreement to the Independent Children’s Lawyers proposed minute of order
ICL
ICL4
Bundle of documents being correspondence from the father to Dr B
ICL
ICL5
One page of the father’s notes attached to a draft affidavit bearing the date of 23 October 2013 of the father
ICL
ICL6
Documents produced by NSW Police being a court history list of convictions for the father
ICL
ICL7
Transcript of audio produced to the Court by Mr R
2/6/13
ICL
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and 65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
The making of an order for equal shared parental responsibility is, however, not of itself, determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) & (2) of the Act.
By virtue of s.65DAA(1) & (2) of the Act, the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of his/her parents.
“Substantial and significant” time is defined in s.65DAA(3) of the Act as:
a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made under s.65DAA(1) & (2), the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1)The “objects”…are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).”
Section 65DAA(5) provides that the Court must have regard to certain specific matters, to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable.
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d)considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders set out above.
Issues
The essential issues in dispute the subject of determination are:
a)Parental responsibility;
b)Who the children are to live with;
c)Time to be spent with the children; and
d)Whether the children should be separated.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born on [omitted] 1966 and is currently 48 years of age.
b)The mother was born on [omitted] 1977 and is currently 37 years of age.
c)The father’s occupation is unemployed and he is, currently, on a disability support pension.
d)The mother’s occupation is [omitted], but she has ceased work after completing her maternity leave and at the time of hearing she was not, currently, in paid employment.
e)The father lives at [address omitted].
f)The mother lived at [address omitted] with her partner Mr R (“Mr R”) and their child [Z] born [omitted] 2013 (“[Z]”), but has more recently moved to [address omitted].
g)The parties married and commenced cohabitation on [date omitted] 1996.
h)On [date omitted] 1998, [X] was born and he is, currently, 16 years age.
i)On [date omitted] 1999, [Y] was born and he is, currently, 15 years of age.
j)The parties separated on 9 September 2006 and were divorced on 30 October 2007.
k)On 3 April 2008, an AVO was made against the father for a period of 2 years protecting the mother and preventing the father from being within 100 metres of the mother’s residence or the [omitted] Public School (where the children were then enrolled).
l)On 15 October 2008, the Local Court of New South Wales at [omitted] granted the father a s.9 bond with respect to his contravention of a prohibition/restriction contained in the AVO, as a result of a charge made against him on 5 May 2008.
m)On 25 January 2010, the AVO against the father referred to in (k) above was extended for a further 2 years.
n)On 10 March 2010, the Local Court of New South Wales at [omitted] fined the father $500.00 costs and Court costs of $76.00 in respect of a contravention of the AVO together with, imposing a $500.00 s.9 bond and Court costs of $76.00, with respect to a charge made against him on 4 July 2009.
o)In about May 2011, the mother commenced an intimate relationship with Mr R.
p)On [omitted] 2013, a child, [Z], was born of the relationship of the mother and Mr R.
q)On 13 June 2012, an interim AVO was made against the father in the Local Court of New South Wales at [omitted] for the protection of the mother.
r)On 30 July 2012, a final AVO was made against the father in the Local Court of New South Wales at [omitted] for the protection of the mother which was to be in force for 12 months.
s)On 9 October 2013, an interim AVO was made against the father in the Local Court of New South Wales at [omitted] for the protection of the mother, Mr R, the children and [Z].
t)On 13 December 2013, a final AVO was made against the father in the Local Court of New South Wales at [omitted] for a period of 3 years for the protection of the mother, Mr R, the children and [Z].
u)In 2014, [X] was in year 10 at [B] School.
v)In 2014, [Y] was in year 9 at [B] School.
Expert evidence
Dr B’s reports (which are Exhibits “Court 1” and “Court 2”) were based on the material provided by the parties and the interviews conducted.
Exhibit “Court 2” being, Dr B’s first report, provided a recommendation for equal shared parental responsibility but for some form of mediation, if it became necessary for future schooling decisions for [Y], given at that time, there were some divergent views as to an appropriate school for him. Dr B records [X] suggested the possibility of an equal time regime, while [Y] remained clear that he wanted to live with the father.
Dr B records that the father was resistant, at that time, to the possibility of the children being separated and in light of this, expressed a concern that that issue would lead to the institution of further proceedings were such an order to be granted. The father’s proposal before the Court now articulates a separation of the children. The mother has been opposed to the children being separated, at all times.
Dr B was of the view that if [Y] lived with the father, given the father’s “apparent difficulty in establishing boundaries for [Y]”, that that would, negatively, impact upon any structure, routine and consistency for [Y] which would also, negatively, impact on his school work (where he was already experiencing some difficulty), but also in relation to his capacity to develop a relationship with his brother. Dr B considered that the significant inconsistency between the parent’s parenting styles was likely to create a further rift between [Y] and the mother, if [Y] was to live with the father.
Dr B was, clearly, of the view that it would not be in the children’s best interests to institute an equal time regime and that the orders of the Family Court of Australia made in 2008 (see paragraph 7(d) above) could be reinstated to provide for the father to spend substantial and significant time with the children but still allowing the mother to continue to provide routine and structure for them.
Dr B, strongly, recommended that both parties undertake education regarding parenting, particularly so as to enhance their understanding that a simple “acquiescence” to a child’s wishes is not always in the best interests of the child and that children do not always have the capacity or relevant information to make informed decisions, relating to their care, at the age of 12 years”.
Dr B was critical of the mother demanding a better code of conduct from the children (eg basic compliance with homework or chores) yet demonstrating a, substantially, poorer code of conduct, herself, by swearing and lashing out at them, in frustration.
Dr B was equally critical of the father in his demonstration of aggressive and threatening behaviour in the presence of the children and in public, which he said could only be “profoundly distressing for all concerned, but also incredibly embarrassing for” the children.
Dr B considered it remarkable in light of the matters in paragraphs 32 and 33 above, that the children had matured to their respective ages with “minimal concerns about their own behaviour, in contrast to that of their parents”.
Exhibit “Court 1”, being Dr B’s second report, provided that if the Court was satisfied as to the mother’s claims concerning the father’s alleged continuing threatening conduct, then a sole parental responsibility order should be made in the mother’s favour. Dr B further supported this on the basis of [Y] needing “all the encouragement and guidelines possible, just to complete his Higher School Certificate, even at just a pass level” and the mother being the more likely parent to be able to achieve this.
Dr B records a number of matters setting out the mother’s concerns as to the father’s behaviour including his refusal to have issued passports for the children, his abusive conduct at changeovers at McDonalds and at [sport] training events, his dangerous driving to cut the mother’s car off, his following of the school bus to have [Y] get off it, his threats to kill the mother, Mr R and any of their children, his threats to harm her child, his favourable treatment of [Y], compared to [X], including picking [Y] up and leaving [X] to take the bus to and from school or being dropped blocks away from the mother’s residence at changeover.
While Dr B records that the mother “discussed her suspicions regarding [the father] abusing [Y]”, the mother conceded that she had made no such allegations against the father. She maintained that [Y], however, had become oppositional to her parents, refused to attend a dentist visit and had become, too, influenced by the father in that he “feels sorry for his dad and needs to be there… as no-one else is”.
The mother reported that both children stopped taking their mobile phones to the father’s house as, she asserted, that the father had searched through their bags and directed them to use passcodes to open up the phones so that he could review the phone records. The father could not recall how he gained access to the phones but said that he had accessed them, he said, for the purposes of checking that there was not “sexting” and stated that this was not “a big issue”. That when the father had discovered the identity of the mother’s partner on the children’s phones and PlayStation terminal he had required them to delete his reference and to have the father added with the word “revenge”.
Dr B stated that [X] impressed as a “sensitive, articulate young man”. [X], again, confirmed that he wished to remain living with the mother as she “cooks and cleans” and he was critical of the state of cleanliness in the father’s household. [X] indicated that as he was a Taurus he did not like change. He was, further, critical of the father telling him not to touch his pimples and that his father did not like the mother putting cream on them.
[X] reported that the mother had told him about the father holding his fingers up doing the “five years thing” and the father told him that the mother and Mr R “stuck their fingers up” at him.
While [X] stated that being separated from his brother did not bother him because he would see him at school and weekends he stated that [Y] might miss [Z] and that both children had a good relationship with Mr R.
Dr B stated that [Y] seemed somewhat disinterested or was hesitant to provide information. [Y] stated that he wanted to live with the father because it was “boring at mum’s” and that he had more that he could do at his father’s home. Those things included playing with his dogs, basketball, watching Foxtel and movies and that his father drove him to [sport] training and matches, whereas, the mother wanted him to get the train there with friends. [X] confirmed that [Y] hated getting the bus. He expressed a desire for the father to take him to the training days and games on Tuesdays, Thursdays and Saturdays.
Dr B reports that [Y] perceived, himself, still to be caught in the middle of his parents’ conflict but he remained powerless to do anything about it other than, emotionally, and, to a lesser extent, physically, to withdraw. Dr B stated that his transitions across various sporting teams, in part, represented a need to belong to somewhere which provided a sanctuary and distraction from the tension of his parents’ acrimony. This level of disputation causing him stress which resulted in an increasing disinterest in his academic performance.
Dr B stated that both parents demonstrated a genuine care and concern for the children but that their ongoing conflict, despite both completing post-separation parenting courses, was negatively impacting on the children.
Dr B was of the view that both parents had been putting resources into maintaining each other’s suffering, to the detriment of quality time with the children. Dr B was of the view that the children’s behaviours “may be linked to insecure attachments which can manifest in anxiety, depression and worry”.
Dr B’ view was that the father’s “openly discussed preference for [Y] was likely to further alienate [X]….and widen the gulf between the two brothers, as well as between [X] and [the] father”.
Dr B stated that the father’s threatening behaviour towards the mother and her partner appears to have escalated to now include repeated derogatory references to their new child with little or no concern as to the likely impact of this on the children. The Court observed the father’s aggression towards the mother’s new partner in Court.
Finally, Dr B records that any Court orders are likely to be temporary as the children are now at an age in their transition to adult status, where they will vote with their feet.
Dr B confirmed from his observations that neither of the children appeared to be directly subjected to neglect or abuse from either of their parents. Weight is attached to that observation.
Dr B recommended that the mother be the residential parent given, he said, that the father remained “relentless in his display of aggressive and threatening behaviours, at times in front of the children”, which constituted inappropriate parenting and modelling and would be toxic behaviour for both children to be exposed to. The Court observed the father in such displays of aggressive and threatening behaviour directed at the mother and specifically at the mother’s partner, without any understanding as to the role that her partner has had and will continue to have in the lives of the children. Dr B recommended that notwithstanding the views of the children, given their age and improving relationship, they should continue to reside together. Significant weight is attached to that view.
Dr B was of the view that the orders of September 2012(see paragraph 7(o) above) prescribed minimal contact for each child to spend with the father. Dr B recommended that the children continue to spend at least part of each alternate weekend and a portion of all school holidays with the father. However, if the Court was of the view that the father would have difficulties in ceasing his threatening behaviour towards the mother, her partner and [Z], [Y]’s time with the father should be restricted, until [Y] reached an age to “exercise more informed choice”. Weight is attached to that.
Dr B was of the view that both parents needed to make changes in their parenting styles, with the mother to respect the children’s increasing age and to work to negotiate more effectively with them. The father was directed to consider engaging more actively in both of the children’s lives, so as to avoid favouring [Y]. Both parties were directed to undertake further parenting courses, which the Court notes they have agreed to do.
The Court has quoted extensively from Dr B’s reports as set out above. Dr B was orally examined and his evidence was entirely consistent with the terms of his previous written reports. Dr B corrected a typographical error in his second report concerning the ages of the children but, otherwise, completely adopted his recommendations, noting that while his two reports were prepared some two years apart there had, unfortunately, been no obvious improvement in the parties’ parenting and, indeed, life had appeared to become somewhat more difficult for the children. Dr B noted that given [X]’s age and his ability to now “vote with his feet” it was likely he would do his own thing. Dr B supported the mother’s household as the primary residence for [X], given his expressed views, and for [Y], given the greater structure it applied towards matters of hygiene and homework. Dr B was of the view that that mother was likely to be the more vigilant parent in that regard. The Court accepts that view and gives it substantial weight.
Dr B confirmed that over the 6 years since separation during which time orders were in place for equal shared parental responsibility, rather than the parties becoming more amicable, they had become more antagonistic. This, clearly, supported a change to a sole parental responsibility order, to avoid the children being caught in the middle of the parenting dispute and significant weight is attached to that.
Dr B was critical of the lack of an ability to communicate between households. The father’s evidence was that he did not respond to text messages from the mother. The father, further, indicated that he did not have workable access to the internet. The father did not agree to the parents communicating by text message and/or email. Without such an agreement, given the level of conflict between the parents, there would be effectively no way to communicate. The Court is of the view that the father had a Gmail account and that his difficulties in accessing it related to a passcode and were temporary. The Court is of the view that an order in terms of order 15, as sought by the Independent Children’s Lawyer, is clearly in the best interests of the children and should be made.
While Dr B described [Y] as a quiet, compliant child trying to appease both parents, he noted that [X] was more assertive. His recommendation for [Y] living in the mother’s household, with defined time for the father, was based on a need to ensure that the father did not manipulate [Y]. The Court is of the view given [Y]’s age that further time with the father in accordance with his wishes, should be implemented, when [Y] turns 16 years of age.
Dr B was, further, of the view that it was the mother who was the likely parent to act as a bulwark against [Y]’s personality vulnerabilities, which if left unprotected could see him move into social groups which may not be as positive as his current sporting teams and potentially exposing him to antisocial behaviour. To that extent, an ongoing live-with connection with the more robust [X] is likely to assist him avoid that outcome. The children remaining together is that which is, likely, to promote a good sibling relationship.
Dr B was of the view that the father had to some extent “targeted” [Y] to the extent that he had become an item of possession and had offered him greater freedom at his home. [Y] had been encouraged by the father to think that the mother was not as encouraging, as the father, of his interests in sport. If [Y] was to live with the father that, would, to some extent support [X]’s view that the father was only interested in his younger brother and that, in itself, would not bode well for the ongoing maintenance of the father’s relationship with [X]. This position, clearly, supported the mother’s and the Independent Children’s Lawyer’s proposal for both children to live with the mother. The mother’s evidence was that she had arranged for [Y] and [X] to travel to Brisbane in January 2012 to see the Broncos and for [Y] to meet his favourite player, as his personal ambition. The mother said that the father being aware of this had dropped [X] back at McDonald’s but had then retained [Y] so that he missed out on this trip, necessitating the mother bringing a Recovery Order application (see paragraph 7(e) above). The Court accepts the mother’s evidence in relation to this trip and the negative effect it had on [Y] in not being able to travel at the time so as to fulfil his ambition. The mother brought a second Recovery Order application, when the father had failed to return [Y] in February 2012 (see paragraph 7(i) above).
Dr B was, further, critical of the father in searching the children’s bags for mobile phones and in demanding access to them as an invasion of their privacy, given their ages. To require the children to delete information or photographs had the potential to impact on their self-esteem.
Dr B expressed a degree of sadness when he heard that the parties were unable to resolve the issue of the mother and her partner travelling with the children on a holiday to Malaysia. This matter had to be determined by the Court. The father had expressed concerns that the mother may travel to Greece, where she had family support and not return the children. The father continued to maintain these concerns in his evidence before the Court. The Court had ordered (see paragraph 7(t) above) that the mother could travel and the Court received, as part of Exhibit “A”, various photographs showing the children having an enjoyable time on holiday. The mother tendered numerous text messages, as part of Exhibit “F”, which, she asserted, had come from the father, including messages stating: “Get kids out of that area u fukn idiot”, “Muslm terorist kidnapimg tourists on drive to Thailand google it”, “Demonstrations Bali Thailand Malasia Indnedia Australia at war go airport now”, “82 Australian toursts mising in Thailand”, “82 Mising Austrlian tousts now sex slaves livn in dungeons get out you idiot”, “Margaret Dent said sun will go down on me at 51 yrs old she knew its written destny I want revenge devil wants blood I saw it in a dream”; when she and the children were on holiday in Malaysia. The father denied sending them, however, the mother’s evidence was that the reference to “Margaret Dent” was to a psychic that both the father and the mother had attended upon before they got married. The reference in one of the text messages to the “51 years” of age aligns with the father’s age and the Court accepts, that on the balance of probabilities, these texts were, indeed, sent by the father. The Court was concerned that there appeared to be no messages from the father to the children enquiring about their trip overseas, even wishing them well for it. The father had the opportunity to put that evidence before the Court, if it existed, in response to the mother’s assertion that there were no messages from the father to the children, to her knowledge, and the only messages received were the messages tendered in Exhibit “F”. Notwithstanding all of the above and the father’s continuing concerns about overseas travel, the parties were able to reach some agreement, in terms of the consent orders, concerning the retention of the children’s passports.
The Court finds that the proposal of the Independent Children’s Lawyer is, largely, supported by the recommendations of Dr B and those recommendations are afforded significant weight, given that the recommendations and opinions expressed (and assumptions and observations which grounded them) were soundly based in accordance with the body of evidence before the Court and none of the relevant factual matters relied upon by Dr B have been found to be inconsistent with such evidence. The Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713.
Parental Responsibility
The Court finds that the presumption will not apply in this case, as:
a)There is sufficient relevant evidence to negate the application of the presumption because of the factors referred to in s.61DA(2) of the Act (being reasonable grounds for the Court to believe that the children concerned have been the subject of abuse or family violence); and
b)there is sufficient relevant evidence to rebut the presumption, as not being in the best interests of the children: s.61DA(4) of the Act, after a consideration of the primary and additional considerations under s.60CC(2) & (3) of the Act.
The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act).
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
a)the child’s education (both current and future); and
b)the child’s religious and cultural upbringing; and
c)the child’s health; and
d)the child’s name; and
e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
The Court has had, in addition to consideration of the above factors, particular regard to the following:
a)The parties’ practical inability to work together to reach an accommodation with each other, that can work for the interests of the children.
b)The parties’ clear inability to communicate. The father accepted that there was no communication between the parents to enable shared decision making to occur. He acknowledged that he did not respond to text messages from the mother. The father maintained that while he had access to a computer, he was not fully computer literate but appeared to indicate that he may be able to improve that to enable some communication via email (or text messages), as he had difficulties with accessing his password. The father said that he would attend with the children at an internet place where he would sit and watch them on the computer.
c)The parties’ lack of respect for each other.
d)The extensive litigious history between the parties set out above.
e)The mother’s expressed views that she continues to feel intimidated and threatened by the father.
f)The father’s aggressive behaviour towards the mother and her partner, Mr R, as observed in Court.
g)The parties’ different approaches to parenting.
h)The mother’s historical role as primary care-giver.
i)Dr B’s view obtained in the clinical interviews indicated that the parents had a dysfunctional relationship characterised by high levels of acrimony and conflict with an absence of any cooperation between them.
In light of the above, and the Court’s view that the children should live with the mother, the Court, in those circumstances, supports an order for sole parental responsibility in the mother, in light of the recommendations of Dr B. The Court also notes, in this regard, that the mother has largely assumed that responsibility, without any cooperation from the father.
For the reasons referred to below and for the weight given to such matters expressed, the Court is of the view that the Independent Children’s Lawyer’s proposal for spend time arrangements with the father should be ordered, given that they provide for the children to spend time with him on alternate weekends during school term, from 10.00am Saturday until the commencement of school on the Monday, which will allow the father to have an opportunity to at least, deliver the children within 200 metres of the school, so as to enable him to still be involved in that aspect of the children’s schooling.
Primary considerations
In order to determine a child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section s.4(1) of the Act defines “family violence” as:
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The considerations listed in s.60CC(2), do not inevitably outweigh the other considerations, but the Court must give some weight to be attached to the term “primary”. See Elspeth & Peter [2006] FamCA 1385.
In this regard:
a)The primary consideration referred to in s.60CC(2)(a) is supportive of the position that each child should spend time with the father in order to maintain a meaningful relationship. The father asked the Court to accept that his relationship as a “second son” with [Y] was more meaningful. Dr B’s evidence was that [Y] was a much more compliant child than [X] and more easily manipulated by the father. Notwithstanding this, the Court accepts the Independent Children’s Lawyer’s submission that there needs to be some degree of a common basis with the children in spending time with the father and making an order for “no time” with [X] would distance both children from the father.
b)The primary consideration referred to in s.60CC(2)(b) is supportive of an order that would see the children live with the mother. The mother reported to Dr B that she observed the father “on occasion become highly agitated and verbally abusive, often prompted during family gatherings”. The Court observed the father become highly agitated and verbally abusive towards the mother and Mr R in Court, when one would have expected the father to be on his best behaviour. On 5 August 2014, when the father apologised for his outburst the previous day, it was only a few hours later when he, similarly, erupted into what could only be described as a verbally aggressive attack. Dr B reports that the father was by far the worse transgressor in relation to aggressive and intimidating displays and the Court accepts that view. The Court, however, is of the view that the mother, in the colloquial sense, “knew how to push the father’s buttons” to obtain a reaction. The father alleged that the mother had sprayed the children with perfume knowing that he held concerns about that. Dr B said that he would be concerned if the mother had done this as part of a strategy to be antagonistic towards the father. Dr B, however, further said that neither child had reported this issue to him as a matter of any concern raised.
c)[X] reported to Dr B, in the first interview, that he understood the father using the fingers of one hand to indicate the number 5 was a threat to kill his mother once he and his brother were 18, that is, in 2017. [X] reported that he understood the father’s threat was directed at the mother and not himself or [Y]. [X] understood that the father’s threat could be seen as “very bad… scary”.
d)Neither child reported to Dr B that they had been exposed to physical or verbal aggression from the father, directed at them. Indeed, the mother’s evidence was that, from quite a young age, the children were able to speak back to the father and assert their positions. The Court accepts, however, that the father has acted in a threatening and intimidating manner towards the mother and the mother’s partner and the children are well aware of this.
e)Both children reported that the mother had screamed and sworn at them but neither child reported that she had ever hurt them or that they had felt particularly threatened by her behaviour. Dr B records that both children, in 2012, were of a sufficient physical size to “either adequately protect themselves… ....or remove themselves from…. any physical threats”.
f)The mother’s evidence was that she had received numerous text messages from an unidentified telephone number, but being a Telstra payphone. The father conceded that the mother had a photograph of him in a payphone (part of Exhibit “B”) making a call when, he said, he had run out of credit. The father conceded that he knew text messages sent from a payphone could not be traced and whoever had sent the text messages concerned, wanted to conceal his/her identity. The mother said that that photograph coincided with a text message that she had received and that she and her partner had driven to a location to observe the father in the phone booth at 3.49pm after receiving a text message at 3.35pm on 16 September 2013. She said that this was confirmed by her receipt an hour later of a text message stating “thanx 4 warning loser”. The text messages sent from the Telstra payphone can only be described as dreadful. The text messages appear to raise the very issues that the father has expressed concerns about, namely, the fact that the father’s unit was transferred into the mother’s name (see Exhibit “ICL4”) and not into the children’s names or in trust for them in the property settlement between the parties, a lack of proper food issues (referring to vegemite/nutella sandwiches and chips) and [X]’s pimples (as reported by [X], himself, to Dr B) and, indeed, raised the various concerns articulated by the father about the mother’s trip overseas with the children. One such text stated: “I’m livin with dad bring skool bag 7 sun maca wen drop off [X]”, clearly articulated the father’s views that [Y] should be living with him. The Court accepts on the balance of probabilities that the father has sent all of the text messages, which he has denied sending to the mother. Those messages include threats to “fuk her baby up its arse then chop its head off”. The father’s denials are not credible. His assertion that the mother has manipulated her partner or past boyfriend, “Mr S”, to send these texts, similarly, lacks any credibility. Of significant concern is the fact that the father sought to transfer some of the blame to the mother and Mr R for, he said, sharing such a message with the children. As the Independent Children’s Lawyer submitted and the Court accepts, this appeared much more illustrative of the father’s focus on blame and retribution in his relationship with the mother.
g)The Court, further, accepts that the father, on 2 January 2013, had a telephone conversation with the mother and said to her the words recorded by Mr R on his mobile phone (Exhibit “G”), even though the father denied it was his voice on the recording, as transcribed. The conversation recorded was played in Court and was consistent with the father’s expression as contained in the various text messages and documents prepared and his emotional presentation in Court. This transcription was made following an order for the Independent Children’s Lawyer to have access to Exhibit “G” and is in the following terms:
[This a transcript prepared on 5 August 2014 by Violet Lloyd, solicitor, Rowley & Associates. Ms Kim Rowley is the Independent Children’s Lawyer. Duration 2 Minutes 06 Seconds. The Iphone was sighted and the recording dated ‘2/01/2013’ was heard. Audio is described as accurately as possible. Transcript does not include indistinct background voices, possibly from television.]
Male voice: “You wanna fuck with me uh? You wanna fuck with me uh? Well, let’s just wait and see what happens uh? You wanna fuck with me? You wanna fuck with me uh? Oh you fuckin’ ‘ave no idea, you ‘ave no fuckin’ idea, you fuckin’ cunt, you have no idea you fuckin’ shit cunt…no idea, I’ll keep grinding my teeth, I have to keep grinding my teeth all night but I’ll fucking keep grinding my teeth all night because one day I’m not going to wait any longer you f[indistinct] shit cunt”.
[Audio continues with indistinct background voices.]
The written form of the above recording was produced and accepted as accurate by the mother and the Independent Children’s Lawyer. The father was given the opportunity of agreeing to its accuracy, not its providence (as he denied being the male voice recorded). The father refused to carry out the exercise of listening to the recording and reading the written version. The written version has become Exhibit “ICL7”. The father’s attitude was, however, consistent with him seeking to distance himself from this material.
h)The Court, further, accepts that the father has engaged the children in his negative views of the mother and, particularly, his very negative views of the mother’s partner, Mr R.
i)The Court, further accepts, that the father has threatened to kill the mother and her partner and any children they have (excluding the children), at some point in time and continues to make that threat by holding up his fingers, counting down the number of years from 5 in 2012 to 4 in 2013 and to 3 in 2014, notwithstanding that the mother referred to the father doing the “5 fingers” in September 2013.
j)The Court, further, accepts that the father has difficulty restraining himself, even in the Court room itself (when one would have expected him to have been on his best behaviour), from showing his detest for the mother’s partner and what he regarded as Mr R’s inappropriate involvement with the children.
k)The Court would have been of the view, if not for the ages of the children and the relationship that they have with the father, that the father’s behaviour as referred to above may have, otherwise, disentitled him to spend any time with the children.
l)The Court finds that while the children’s relationship with each parent might suggest an equal shared parenting arrangement would suit them, the level of parental animosity and hostility contraindicates this.
m)The father in his oral evidence indicated that he had no problem with the mother’s arranging for the children’s immunisation and vaccinations.
n)The father, in his oral evidence, confirmed that he had not been to a school parent teacher night, nor met the children’s teachers. The mother appeared focused on the children’s educative needs. The father’s concession that [X] should live with the mother was, to some extent, reflective of [X]’s more academic pursuits in that he wished, to become a geography teacher.
o)The above matters weigh in favour of a sole parental responsibility order and a live with order in the mother’s favour.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
[X] had expressed a view to remain living with the mother and to spend time with the father. Initially, he suggested a half time regime but elected to remain at his mother’s because “she cooks”. [X] did not see any difficulty with being separated from his brother as, he said, they did not get along, however, he also acknowledged in 2012 that this had improved. [Y], on the other hand, stated to Dr B in 2012, that he did not like his brother.
[Y] had expressed a view to live with the father and spend time with the mother, initially every second weekend. This, the father said, was because [Y] did not believe that the mother supported his sporting interests including his [omitted]. The Court is of the view that the mother does, in fact, support the children’s sporting interests.
The father advised Dr B, in his first report, that he would accept the expression of the children’s views.
[X] presented in his first interview with Dr B as “confident and thoughtful”. [X] enjoyed tennis, his computer and watching movies. The father regarded [X] as “more like the mother”, being both “first” born and more academic.
[Y] presented in his first interview with Dr B as a “rather taciturn young man”. The father regarded [Y] as more like himself, being the “second” born and more interested in sport. Both parties agreed that [Y] had a love of rugby league, playing with the [omitted] and that he worshiped the Brisbane Broncos and his favourite player, “Jharal Yow Yeh”.
Dr B was of the view in his first report, that [Y]’s desire to live with the father was likely to be a response to his understanding that that would present him with a far more “relaxed lifestyle and environment with a greater scope for doing as he pleases, without discipline and with apparent little regard for his schooling requirements”. The Court also accepts that [Y]’s views have been influenced by the father and, in that regard, his expression is given diminished weight.
Notwithstanding the views expressed by the children, Dr B’s opinion in his first report, was that to implement a separation “may have potentially disastrous negative effects on the siblings’ relationship in the long term”. Dr B, in his second report, confirmed that the children should not be separated and his oral evidence supported that little weight should be given to [Y]’s views, as they were to some extent predicated on the basis of “peace at any price” and, in those circumstances, were not, therefore, “considered and insightful” views. The Court accepts that position.
The mother reported to Dr B, in 2014, that she would be happy for [X] and [Y] to have day time visits with the father, but that this depended on “[Y] and [X]’s choice”. She was, further, happy for [X] to visit the father on Friday evenings, “only if he wanted to”.
The Court is of the view, given the ages of the children, that any additional time (after defined time orders) with the father after they turn 16 years should be, in accordance, with their wishes.
The Court is of the view that the children should live with the mother and spend time with the father. The Court accepts Dr B’s view that little weight should be given to [Y]’s expressed view to live with the father.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
It is accepted that the children have lived mainly with the mother since the parties’ separation in 2006, that is, for a period of some 8 years. The Court, further, accepts that, prior to the parties’ separation, the mother had been the children’s primary carer, given the father’s shift work employment at the time.
The Court accepts that both parents love the children and have their best interests at heart. The Court is also of the view that the level of ongoing conflict between the parents has meant that the children are, regarded by both, as something to argue over and in those terms, this ongoing conflict is, negatively, impacting on both parents’ relationship with the children and has the ongoing potential to, negatively, impact on the children’s relationship with each other. Weight is attached to that in support of the Independent Children’s Lawyer’s proposed orders.
The Court accepts that the father has a relationship with both children. [X] sees the father as more interested in [Y]. [Y] sees the father as providing a freer living environment with more emphasis on his sporting interests. [Y] sees the mother as being more demanding and more interested in academic matters, which he is less interested in.
The mother’s evidence was that she provided the more structured household for the children. The Court accepts that and gives it weight in light of the recommendations of Dr B.
The Court finds that the children have a good relationship with both of their parents and that notwithstanding the ongoing parental disputation they appear to have taken those matters in their stride.
The Court accepts, however, that if [Y] was to spend more time in the father’s household there would be an increased risk of him being embroiled in the negative attitude expressed by the father towards the mother and her partner and [Z].
and other persons (including any grandparent or other relative of the child);
Both children reported that Mr R was “good” and described playing video games with him in positive terms.
The father maintained that he had not lived with his parents since 1995, but visited them on occasion. The conversation recorded on 2 January 2013, was asserted by the mother to have occurred when she was phoned on her mobile phone which was then recorded by Mr R on his iPhone.
The father acknowledged that he had left one of the children under the supervision of the paternal grandmother while he accompanied the other child on outings. [X], given his desire for cleanliness, has utilised the paternal grandparents home for showers. This sees him continuing to maintain a connection with them, although the father does not indicate any specific relationship between the children and his extended family.
The father indicated he had no difficulty with the maternal grandmother being involved in assisting the mother effect changeovers. The mother’s position was that her mother lived in Newcastle and that was not practical.
The father clearly detested the mother’s new partner, Mr R, and the Court accepts that he has behaved in an aggressive and inappropriate way towards Mr R. The Court, further, accepts that the father has inappropriately texted the mother about Mr R and [Z].
The Court is of the view that if the father’s proposal was to be accepted it would negatively impact on [Y]’s relationship with the mother and with Mr R and [Z]. The Court also accepts that it would potentially, negatively, impact on [Y]’s relationship with his brother, [X]. The father’s proposal does not seek that [X] live with him. Given [X]’s age and the expression of his views, [X] will remain living with the mother. Given Dr B’s views, that separation of the two children is not in their best interest, the maintenance of their relationship dictates that [Y] should continue to live primarily with the mother. Significant weight is afforded to Dr B’s recommendations in that regard.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother reported to Dr B, in his first report, that she would prefer that the children have no contact with the father, but stated that she recognised the importance for the children on having continued contact.
Dr B reported, in his first report, that the father’s perception of his own role in the continued conflict “appeared minimal”.
Dr B was critical, in his first report, of the father showing no awareness that by simply seeking to implement [Y]’s wishes (to remain with him), in not returning [Y] at the agreed time and having [Y] send a text message to the mother was likely to provoke a hostile reaction in the mother.
Dr B, in his second report, noted that the father remained entrenched in his negative perceptions of the mother and her parenting abilities, even when, as the doctor stated “the exemplary conduct of their sons was highlighted” to him.
The Court accepts Dr B’s evidence that, given the ages of the children, they are likely in the not too distant future to vote with their feet and maintain a relationship with each parent by doing so and weight is attached to that.
The Court finds that the mother is the more likely parent to promote a relationship between the children and the father than the father is of the mother. In December 2011, at the request of [Y], the mother agreed to the children staying with the father for an extra week. The mother has been able to text the father. The father’s position is that he does not respond to texts. This has meant difficulties at change overs, including at a recent Mother’s Day when the children did not spend time with the mother as ordered, as the mother had thought that the children had sought to change times and acted, accordingly, and the father had not. This inability to communicate with the mother has meant that the children have been dropped off at the mother’s home (or nearby), when the mother has not been there, forcing the children to wait for periods of time (on one occasion for hours when the mother was in hospital and on another occasion for up to 5 hours when the mother had been visiting her parents in Newcastle), as the mother had not been prepared to give the children a house key as the father, she said, was likely to go through the children’s belongings, find it and copy it. The father confirmed that he did go through the children’s bags and accessed [X]’s mobile phone, including the telephone calls in and out and the photographs on it, although he could not remember whether he had asked [X] first, but stated that he regarded it as “not a big issue”. The fact that the children do not take their mobile phones to his house, as confirmed by him, supported the mother’s account that the father had accessed [X]’s phone, found her partner’s details and pictures of their holidays and was then abusive to the children about those matters. This behaviour appeared, entirely, consistent with that observed in Court, as to his reactions towards Mr R. The only texts, which the father denies sending, are texts which, to a large extent, are inappropriate, offensive and threatening. In the circumstances, as said, on the balance of probabilities, the Court accepts that the father has sent these texts. His explanation that they have come from someone else is so unlikely as to be incredible. His explanation is predicated on the basis that the mother, herself, had orchestrated these texts to damage his position. The Court does not accept that proposition. The Court, further, accepts that the father has been openly hostile to the mother’s new partner. This, in turn, supports the view that the household of the mother is more likely to be able to provide for the needs of the children in maintaining a connection with the other parent. The Court having heard the evidence of Mr R was of the view that he was not as openly aggressive towards the father as the father was towards him. The Court is of the view that Mr R will, in those terms, support the children’s relationship with the father and weight is attached to that.
The father admitted that he had made a statement that the mother’s friends, referred to her as “Sexualla” and that the mother’s boyfriend had talked about her “moaning” and called her “a whore”. The father maintained that the mother was seeing her then-boyfriend, Mr S, while still in a relationship with him and acknowledged that [X] had overheard him referring to the above. The father’s acknowledgement in this regard does not do him credit with respect to this factor and his encouragement of a good relationship between the mother and [X]. The father, in submissions, maintained that the mother’s friends referred to her as “Sexualla”, as he said, she was known as such due to all her boyfriends. He then ranted in submissions about seeing the mother in the passenger seat “masturbating” which, he said, he simply could not forget. This submission lacked any foundation in the evidence.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
Given the orders promoted by the Independent Children’s Lawyer, the Court is of the view that continuing a regime of alternating weekends with the father to return the children to a location near the school would be in their best interests and consistent with current orders that had been in place for some time. The children need to have some consistency.
The children being returned to the mother on a Sunday evening, in accordance with her proposal, would be a substantial change. The mother was critical of the father returning the children on a Sunday evening in their school uniforms, causing them some embarrassment. Further, the father returning the children to a location near the school avoids the parents coming into contact and, therefore, conflict. Significant weight is attached to this in support of the Independent Children’s Lawyer’s proposal for the alternating weekend time.
The mother has made decisions concerning the children’s education and health. The father has not said anything critical of those decisions. For the mother to have sole parental responsibility is not likely to bring about a substantial change for the children. The mother has maintained an interest in the children’s education. The father has avoided attending the children’s schools and notwithstanding the existence of an AVO, appears to have made no attempt to vary that, in terms of attending to schooling interests. In those circumstances, given the children’s current health positions the only long-term decisions to be made now given their ages are likely to be matters relating to education. The Court accepts the recommendation that sole parental responsibility should rest in the mother, so as to avoid ongoing conflict between the parents and under this factor, further, weight is attached to that recommendation.
The Independent Children’s Lawyer’s proposed orders for holiday time are those which are, least likely, to effect any change in the children’s circumstances. The Court is of the view that such orders, would enable the father to take the children away on holiday and the time orders as sought by the mother, would effect a much greater change in their current circumstances, limiting the father’s holiday time with the children to an extent that would have the potential to be detrimental to maintaining an ongoing relationship with him. Weight is attached to that.
or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court accepts that the father’s proposal would, negatively, impact on [Y]’s relationship with the mother’s partner, Mr R, and the child of their relationship, [Z].
The Court, further, accepts that the father’s proposal would negatively impact on [Y]’s relationship with [X] and, indeed, [X]’s relationship with [Y] and the father.
In light of the above, the Court is of the view that this factor weighs substantially in favour of the Independent Children’s Lawyer’s proposal for the children to live with the mother and to spend time with the father as promoted.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There appear to be no real practical difficulty or expense issues in relation to the implementation of the parties’ competing orders.
While there was substantial cross examination (which further fuelled the parties’ antagonism towards each other) concerning the children being driven to school and using public transport and their get up times and school start and end times, nothing relevantly turned on that. The Court accepts that both parties would ensure that the children attend their schooling and extracurricular activities. The Court, further, accepts that the mother has, and would into the future, ensure that the children attend any of their sporting commitments. The critical issue was to avoid the parties coming into contact with each other at changeovers, as this appeared to only cause ongoing conflict.
The mother maintained that the children did not wish to take their phones to the father’s home as he would remove them and access them, or require the children to give him access to them. The parties consent to the Independent Children’s Lawyers proposed order 17, which is directed to that practical matter.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Both parents had completed parenting courses “Talking with your kids” with Unifam prior to the resumed hearing. Certificates of completion of the courses are Exhibits “1” and part of “D”.
The mother expressed concerns as to the father’s low level of understanding of the children’s needs and ability to look after the children, including maintaining their personal hygiene, having a functioning hot water service to enable the children to shower and maintaining a general level of cleanliness at his home. The father conceded that he had been without hot water for some 3-4 months, due to financial constraints. The mother expressed concern as to the father’s ability to maintain a structured routine to ensure homework was completed and for the children to attend school regularly. The mother was critical of the father’s leisure activities including involving the children in watching extensive television and playing computer games. The mother was, further, critical of the father’s views in relation to refusing to use cleaning products, and refusing to apply sunscreen to the children for fear of it causing cancer. The mother said that the father’s behaviour was unpredictable in relation to friends and extended family members and that he disregarded Court orders and had no insight into his behaviour and the effects on the children. The mother maintained that the father used favouritism towards [Y], which distanced himself from [X] and that he asserted, himself, more with [Y], because [Y] was easily manipulated. The father denied favouritism, but said that he had a special bond with [Y], due to them, both, being “second children”.
Of, particular concern, to the mother was her assertion that the father had walked around the perimeter of her family home, singing in Greek, words to the effect of: “I will catch you, I will slaughter you. When I find you I will slash you”. The mother reported that [X] had been so, significantly, disturbed that he had taken refuge in the bathroom, because that room “had the highest window” and the father would not be able to access it from outside. In light of this, the mother expressed concerns about the state of the father’s mental health. [X], however, did not describe this incident during the assessment in 2012, although he noted that the father had attended the house and caused a disturbance by “screaming” outside.
Dr B, in his first report, was of the view that the father’s behaviour did not meet any diagnostic criteria of a mental illness.
The father is on a disability support pension with respect to a back and neck injury, as a result of operating a crane. The father said that he was on prescription Panadeine Forte for pain relief.
The father expressed concerns to Dr B about the mother using unnecessary and excessive physical discipline, hitting and kicking the children, pulling their hair and that she verbally abused and swore at them, including, calling them “f…ing idiots, f….ing morons, dickheads”. The mother conceded to Dr B that she had sworn at the children, but denied she was physically abusive towards them. [X] reported to Dr B, in 2012, that the mother had hit him in the past, but no longer did. [Y] reported, in 2012, the mother had sworn at him, pulled his hair in 2011 and kicked him in 2012, but he did not express any concerns about this. The father asserted that the mother had called [X] a “four eyed nerd”. The mother disputed that and said that she would not have done so as she, herself, wore glasses. This was but one example of the father and the mother descending into largely irrelevant detail and disputation, given that it was clear that [X] had indicated a desire to live with the mother, had raised no concerns as to this type of issue and both parties’ proposals contemplated that position continuing.
The father expressed concern about the mother failing to supervise [Y] who, he said, had accessed internet pornography with a neighbour and the father had expressed concerns to Dr B about [Y], “being sexually molested while unsupervised”.
The father expressed concerns about the mother not adequately feeding the children, including feeding them “junk food” and was critical of any involvement by Mr R with the children including, transporting them.
Dr B stated, in his first report, that the father’s position in simply seeking to implement [Y]’s views, which would provide for a separation from his brother and “may have potentially disastrous negative effects on the siblings’ relationship in the long term”, showed the father’s limited insight, when he would be far better placed to, constructively, promote a more active and positive relationship between the children. In other words, Dr B stated, that “if the parents allow the children simply to give up on having a relationship with each other, it does not augur well for their ability to sustain other relationships in the future when they, too, come under strain”.
Dr B was of the view, in 2014, that the mother apart from some elevated anxiety and stress, did not appear to evidence any other symptoms considered sufficient to meet diagnostic criteria for emotional or personality disorder.
The father reported to Dr B, in 2014, that he had not attended any parent teacher events at school, stating “I am interested, but I can’t go when she’s there”, he gave no evidence that he had sought to obtain other appointments when the mother was not there. This is supportive of the mother’s involvement with the children’s education and weight is attached to that in support of her sole parental responsibility order. The father’s evidence was that he appeared to have little interest in the children’s education, noting that [X] was more academic than [Y] and that [Y] did not bring his school books with him, when spending time with the father and that he was not expecting [Y] to go to University. The father’s oral evidence was that he was prepared, however, to fund a tutor for [X] once he knew what subjects [X] had chosen for tutoring and he would then investigate the cost of doing so. He agreed that he had not paid for a computer for [X], but had paid for its replacement screen, after it had been dropped. Notwithstanding this, Dr B records that the father was observed to be somewhat confused and unaware of the children’s schooling commitments. The Doctor records that he was unaware of the children’s teacher’s names, although in his oral evidence he was able to name two, but confirmed that he had not met any of the teachers.
The Court accepts that the father has been assisting [X]’s “L” plate driving and has done approximately 50 hours with him. The time arrangement for the father’s return of the child to school on a Monday will also assist that, practically.
The father demonstrated to Dr B, in 2014, “a concerning level of rigidity, which would likely translate into an authoritarian parenting style – as opposed to an authoritative parenting style, coupled with elevated narcissistic features which only serves to reduce insight further and increase rigidity proportionately.” This authoritarian stand was reflected in the video of the father and the children in Exhibit “E”. The father’s conduct in returning [X] in January 2012 and holding on to [Y] prevented [Y] from going to Brisbane on holiday, which the mother had said had upset him greatly to the point of being in tears knowing that he would miss out on seeing his favourite player. This had the air of truth about it. The Court does not accept the father’s evidence that [Y] was upset because he did not want to go with the mother because of being kicked by her or having his hair pulled or called f….. dickhead and f…… moron. The child’s reports to the [omitted] police were again in the presence of and under the “control” of the father, notwithstanding that the police had, separately, spoken to [Y]. Dr B noted, that by the father’s own account, “he evidences minimal social support or relationships other than with his sons and his mother. He engages in no structured activity, vocational pursuit or employment. He acknowledged that he has become even more overweight since the initial assessment and that his physical mobility has been compromised further as a result.” The father denied providing Kentucky Fried Chicken to [Y] and said he cooked him eggs, cereal, lamb chops and tomatoes, even sending them to school through his teacher. The father maintained that [Y] was underfed and undernourished. This observation was not supported by Dr B. The father said that he was prepared to assist [X] with tutoring and would pay for that. He, further, appeared to be content that such tutoring could occur at either his home or the mother’s home and that there was no need for the tutoring to occur only at his home. The father had no difficulty with [X] living with the mother, save, with organising his tuition. Weight is attached to that position.
The Court accepts that while both parties have been involved in maintaining the rage against the other, it is the mother’s household which is more likely to provide for the children’s physical and emotional needs, than the father’s. This is, particularly, so given the aggressive display of hatred by the father against Mr R, with no understanding of the important role that Mr R plays in the lives of the children, given that he is the father of their step-sibling, [Z], and both of the children state that they have a good and supportive relationship with him. The photographs exhibited support the children enjoying holiday time with Mr R and the Court was impressed with him as a witness. The Court accepts his evidence that the father had said to both him and the mother “I’m going to chop off your baby’s head and fuck it up the arse real hard”. While Mr R stated that he was angry and shaking and said: “I am not going to play your game” and walked away. This version was not, seriously, attacked by the father and the Court accepts Mr R’s evidence. Further, the Court accepts the evidence of Mr R when he deposes to the father coming up to him, in September 2013, and stating “if you want this to end, let [Y] live with me…”.
Mr R responded: “this has nothing to do with me it’s for the Courts to decide”. Notwithstanding the aggressive displays of anger towards
Mr R in the court room, itself, by the father, Mr R was observed to remain calm, objective and appropriately centred on giving his evidence. Weight is attached to the Court’s assessment of Mr R being able to assist the mother to provide for the relevant needs of the children.
The Court accepts the Independent Children’s Lawyers submission that after having observed both the father and the mother in the witness box, it is the mother who appears the better organised person and the one more likely to be better equipped, including with the assistance of Mr R, for making parenting decisions for the children. The mother presented her case and had her documents in order. The father, on the other hand, did not produce documents and appeared totally disorganised. The Court gives this matter weight.
any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Court accepts that Mr R is able to provide for the relevant needs of the children in addition to assisting the mother provide such needs.
Mr R stated to the father in April 2012: “Think of your children. Why are you doing this? Just go and watch your son play [sport omitted]”. The Court accepts that Mr R has remained, appropriately, objective and detached.
The Court further accepts from the evidence of both parties that extended family members, including grandparents, may also be able to assist in the provision for the needs of the children.
Given the father’s attitude to Mr R, the Court is of the view that he should not be involved in changeovers as it is likely that this will cause an aggressive display by the father, in the presence of the children. Implementing orders to seek to overcome this is likely to be a fertile ground for further disputation between the parents and in those circumstances should be avoided.
There was no relevant evidence concerning the children’s schooling positions. The Court accepts that there were some absences in 2013 but most of that (some 11 of the 20 days) related to the Court approved overseas holiday, the benefits of which were, clearly, supported by
Dr B, in his oral evidence.
The father’s proposal was based on splitting the living arrangements for the children. The father said: “I want to keep [Y]”. This was clearly not supported by Dr B evidence.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
Dr B, in his first report, stated that the children had vastly different temperaments, interests and communication styles.
The mother reported that [X] needs an orthodontic appointment. The father’s evidence was that he wished the child to attend a private dentist to avoid having teeth removed and was prepared to pay for the same to get prompt treatment. The mother confirmed that [X] had had a plate fitted and while the parties did not appear to have discussed the issue, the father was involved in the process by taking the child to have an adjustment made. The father also said that he was prepared to pay for [X] to have eye laser treatment to correct eyesight issues, but that this was not necessary until [X] turned 19 years of age. There is no admissible evidence relevant to this issue.
The father also expressed concerns, to Dr B, that [Y]’s nails had white marks on them, which indicated that he was low on vitamins, as the mother was not, properly, feeding him. The father said that he would take, to the school, eggs, cereal and chocolate milk. To continue to do so would involve the father in breaching the existing AVO. Further, this conduct is likely to cause the children some embarrassment. The Court accepts that the father “chasing” down a school bus and, on the father’s version, passing it and parking on the roadside so that [Y] could see him, for the purposes of alerting [Y] that he had eggs and lamb chops available for him was not only dangerous but showed little or no insight into [Y]’s position. The father maintained that he had not waved down the bus, but that he had pulled up in front of where [Y] would have normally got off the bus. As Dr B says, for [Y], surrounded by other children on the bus, this would have been a “mortifying” experience. The Court does not accept that the children are in need of any supplementary food delivered to them at school.
Dr B discounted the father’s concern as a medical myth in that the white spots (called leukonychia) were not indicative of a calcium deficiency. Both parties accepted that [Y] had complained of some knee pain and that this had been investigated with the child’s doctor. Again, there is no admissible evidence relevant to this issue.
The father gave evidence that he was prepared to financially support tutoring for [X], once [X]’s subjects were known. The father also said that he would pay money for eye laser surgery for [X], any university studies and orthodontic treatment.
The Court accepts Dr B’s recommendations concerning spend time arrangements, given the ages of the children. The Court is of the view that there needs to be specified orders so as to avoid parental conflict but that additional times above those orders may be implemented in accordance with the children’s wishes, in the case of [X] now, given his age and in the case of [Y], when he turns 16 years.
The parties agree that the children’s vaccinations have now been largely attended to by the mother and the father expressed no ongoing concerns about that issue.
Given the mother’s evidence concerning her proposed exercise of the Greek Orthodox Easter and Christmas time, in terms of her faith issues, the Court is of the view that weight should be given to that and accepts the orders in terms of the Independent Children’s Lawyer’s proposed orders 9 & 10 in support of those matters.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
The Court finds that this factor does not, relevantly, apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents have to an extent put their ongoing conflict between themselves, including making a multiplicity of complaints against each other, ahead of exercising their responsibilities as a parent. Dr B has identified, in his reports, where the parents’ responsibilities in this regard have fallen down.
Given the ages of the children, and their ability to vote with their feet, an assessment under this factor does not weigh heavily in the Court’s determination of the parties’ competing proposals.
(j) any family violence involving the child or a member of the child's family;
Both parties agreed that the police have been extensively involved in their family, although each dispute who was the cause of that. The father acknowledged that he may have been responsible for some scenes in front of the children, but maintained that he was “provoked”. The Court observed the father in Court on a number of occasions become highly agitated and aggressive. This was, to some extent, responsive to the mother’s more controlled demeanour, which, seemed, to, itself, aggravate the father.
The parties were so conflicted that difficulties arose in the changeovers at McDonalds given where each party sought to park his or her car. The mother maintained that the father deliberately parked in front of her, so as to block her car. The father denied this, saying that he parked depending on traffic and other pedestrians.
The father maintained that the children were not allowed to show happiness when with him when in the presence of the mother, to the extent that they had to “whisper goodbye” to him.
The mother raised concerns about the father saying to the children that they should not use deodorants, as that impacted on lower sperm count. The mother also raised concerns that the father had told the children that they should not shake hands with people. The father denied these assertions, maintaining that the mother, herself, sprayed the children. Dr B raised this as a possible concern against the mother. The mother denied this assertion.
The father asserted that the mother had smashed the windows of his car and that she had utilised [X]’s birthday and Christmas money. The father said that he had been, particularly, responsible in not having the mother arrested in front of the children. The father said that [X] had pleaded with him not to make the mother pay for the car repairs, as she would then not pay him back. The mother conceded that she had utilised $600.00, but had repaid the monies.
The mother made a statement to police, on 26 April 2012, in relation to an incident that occurred in late April at [omitted] Park, when she had attended to pick up [Y] after [sport] practice. The mother says that the father approached her holding [Y]’s shoes, waving them around and yelling “In 5 years, in 5 years, I’m gunna kill you and any kids you have”. The mother says that the father continued screaming “In 5 years, in 5 years you will see what I mean”. The mother says that she was fearful for her safety and that of her children. This incident followed an event a few days earlier referred to in paragraph 115 above. An interim AVO and, subsequently, a final AVO was granted against the father.
The mother asserted that the father shouted abuse at her and her partner in public spaces, such as at the school, in the McDonalds carpark and at [Y]’s [sport] training events. She said that the father parked close to her car or walked near her car (when he could avoid doing so) and then stared in at her and her baby, when in the car with her, and caused her distress. The Court accepts that this has occurred. The mother’s version was supported by Mr R who deposed that, in August 2013, the father walked up to him and the mother stating: “I’m going to chop off your baby’s head and fuck it up the arse real hard”. This again supports the father being prevented from returning the children to the school but rather to a location some 200 metres from the school.
The mother also asserted that the father drove, dangerously, by slowly driving in the left lane until she was near and then swerving in front of her car, causing her to brake, when the children were with her in the car.
The mother also asserted that the father had followed the school bus and started “beeping” beside it to alert the driver so as to have [Y] get off the bus. The mother says that such conduct was embarrassing and was dangerous. The mother refers to the father driving up on the inside lane when she was parked at a red light and “throwing” [Y]’s sports bag through the open left hand side back window of her car. The father says that the bag was “passed” to [Y]. On either parties’ version, the Court accepts that the father caused the mother distress by driving in a manner which, she regarded, as unsafe and delivering the child’s sports bag, when, she thought it was unnecessary to do so. The father, on the other hand, thought [Y] having his sports equipment (boots) was more important than causing the mother the distress that his actions, no doubt, did.
The mother asserted that the father had sent text messages from a Telstra payphone which were threatening. One such text message dated 3 February 2013, stated: “I’m goin 2 fuk her baby up its arse then chop its head of then she will know how it feels to lose ur kids”. The mother stated that on 15 March 2013, the father “started doing hand and body gestures of sexually abusing, swinging his hips and arms and [moving his] finger across [his] neck as if to chop off [the] head of [my] baby”. The father denied this. The Court accepts that the father has sent these text messages and others denigrating both the mother and her new partner. This is consistent with the findings in paragraph 126 above as to what the mother and Mr R said the father said to them.
The mother reported an incident the subject of a DVD film taken by
Mr R when the father was collecting the children from outside the school on 9 September 2013. The mother says that, on that occasion, she, her partner and her mother were there to collect the children. The mother says that the father told [X] to get into the car. That when [Y] approached, the father directed him to “step” around the maternal grandmother and then locked the children in the car. The Court reviewed the film, the subject of the DVD (Exhibit “E”), and accepts the evidence of the mother and Mr R as to the events on that occasion. The film does not show the father making any “5 years” hand gesture but it does show the father acting in an assertive manner. The video appears to record [X] already seated in the father’s car. The father opens the rear door and beckons to [Y] to get in. The father then moves to the front of the car and is heard to shout “Hey leave him alone”. The father asserted that this was as a result of the conduct of the maternal grandmother in seeking to prevent [Y] going with him. The father then says to [X] “press the button”. The father then drives the car away. Even if the Court accepted that the maternal grandmother had sought to have the children go with her, the father’s conduct would have been embarrassing for the children, as other children passed the car. For the father to have behaved in the manner observed on the film was not appropriate and in the best interests of the children. The father did not engage with the woman who appeared to be the maternal grandmother. This, further, supports a restraint from bringing the children by way of changeover to the school, itself, and the father should effect that by delivering the children on a Monday morning to a location no closer than 200 metres from the children’s school. Further, his behaviour towards the maternal grandmother did not bode well for her being someone that he was prepared to accept as a nominee for the mother to effect changeovers.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
There is currently in place an existing AVO made in the Local Court of NSW at [omitted] on 13 December 2013 for a period of 3 years against the father for the protection of the mother, Mr R, the children and [Z]. This order provided that the father must not assault, molest, harass, threaten or otherwise interfere with the protected persons or a person with whom the protected persons have a domestic relationship and that the father must not engage in any other conduct that intimidates the protected persons or a person with whom the protected persons have a domestic relationship and that the father must not stalk the protected persons or a person with whom the protected persons have a domestic relationship. The orders further provide that the father must not go within 200 metres of the premises at which the protected persons may from time to time reside or work or the specified premises at [address omitted] and that the father must not approach the school or other premises at which the protected persons may from time to time attend for the purposes of education or childcare or other specified premises being [B] School at [address omitted] and further that the father must not approach or contact the protected persons by any means whatsoever except through the father’s legal representative or as authorised by a current parenting order under the Act. The father agreed that he had been to [Y]’s school on 25 July 2014 to provide $10.00 to the office, but believed that he was not then in breach of any restraint imposed on him. It would appear, however, that such a restraint continued to exist under the then current AVO.
The father was convicted on 15 October 2008, in the Local Court of NSW at [omitted] and in the same Court on 10 March 2010, for contravening certain prohibition/restrictions in the then-existing AVOs (see Exhibit “ICL6”). The father asserts that, at least, on one occasion his breach was inadvertent in that he had been a bus driver attending at the school to pick up all of the children and that the mother had attended placed the children on the bus and then reported him to the police. The father said that he would have been in breach of the then AVO simply by driving the bus down the bus route as it went past either the school or the mother’s house. The father said, subsequently, the relevant bus department changed his bus route so as to avoid this outcome. Nothing was tendered before the Court as to the background of this matter and the Court can make no relevant findings, save to note the relevant breaches and convictions and, indeed, the making of the AVOs, themselves.
Weight is attached to the existence of the above current order to support the Independent Children’s Lawyers proposal and negates the application of the presumption.
The father referred to concerns of sexual abuse against the children by the mother’s uncle. This appeared to have no grounding in any relevant evidence and was, simply, a further insult to throw at the mother’s extended family.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The orders proposed by the Independent Children’s Lawyer, as varied by the Court, are those which are least likely to lead to the institution of further proceedings in relation to the children.
The Court has, in those terms not made any order for the mother not to attend any of [Y]’s training sessions nor for an order that she be at liberty to attend any weekend games in which [Y] is playing. Orders in these terms are likely to bring the parties into further conflict.
The Court is of the view that school holiday time, as sought by the Independent Children’s Lawyer, is the order least likely to bring the parties into further disputation and weight is attached to that.
The Court is of the view that changeovers should be either implemented at McDonald’s [R] or when the father collects [Y] from the bus stop at [omitted] (to take to sport), so as to avoid conflict. Otherwise, the children are to spend time on alternating weekends with the father to be returned to near the school on Monday morning as this is likely to further reduce parental conflict. The Court is of the view that there should be an order that the father not park his car within 30 metres of the mother’s car, when effecting changeovers at McDonald’s. The Court has had particular regard to Exhibit “ICL1” showing where the mother parked the car, at the front of McDonald’s, to ensure the benefit of any CCTV protection and the father parks almost in front of her when he said he drops off as, otherwise, on pick-ups he waits inside for the children to come in. Parking where the father does only causes conflict and would appear to be somewhat problematic given his identified parking positions, as being almost on a pedestrian crossing within the car park facility. However, the Court is of the view that it would not be practical to seek to define by way of further order issues as to where a party should, otherwise, park.
Given the father’s issues concerning access to his email and computer, the Court is of the view that order 18 as proposed by the Independent Children’s Lawyer which should be made in the circumstances of a child requiring emergency medical treatment for illness or injury.
(m) any other fact or circumstance that the court thinks is relevant
The Court has had particular regard to the ages of the children and the need to provide for some definition of the time orders to avoid parental conflict, but to allow the children upon attaining 16 years to spend additional time (beyond those orders), in accordance with their wishes.
Matters in ss.60CC(4) & (4A)
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
The Court accepts that notwithstanding earlier orders for equal shared parental responsibility, it is the mother who has exercised parental responsibility in respect of education and health matters (see the vaccination record history, part of Exhibit “D”) and the father has “gone along with that”. In those circumstances, given the ages of the children, the history of decision-making in this regard supports Dr B’s recommendation that the mother have sole parental responsibility. Whilst the father had some concerns about the mother not taking the children to a private dentist, there was no objective evidence to support any real concerns in that regard.
The Court accepts, that given the ages of the children, notwithstanding the live-with orders in the mother’s favour, the children are likely to spend time, in accordance with their wishes. The Court is of the view that specified time should be ordered with “additional” time to be spent with the father in accordance with the children’s wishes, once each child turns 16 years. In the case of [X], that will be forthwith and in the case of [Y], that will be in approximately 3 months’ time.
The Court accepts that both children appear to be able to communicate with each parent. The Court, further, accepts that the parents have agreed to an order that they should not use the children to communicate their positions to the other parent, as to do so, unnecessarily, involves the children in the parental disputation. The parents will need to communicate by text and/or email, in accordance with the Independent Children’s Lawyer’s proposal.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The father had paid assessed child support between 2008 and 2011.
The mother is, currently, not employed. Mr R is providing financial support to her and her family. The father is on a disability support pension and has a child support assessment in his favour. The assessment between 1 July 2013 and 30 November 2013, provided for $0.00 to be paid by the father to the mother. From 1 December 2013 to 28 February 2015, the mother is obligated to pay child support to the father in the annual sum of $710.00 (see Exhibit “D”). The father asserted that because of the final property settlement between the parties, the mother obtained a property which was rented out and that rent was considered in her income for child support purposes.
The father asserted that the mother had removed money from the children’s accounts. The mother conceded that she had taken some $600.00 out of [X]’s bank account (not $1,600.00 as asserted by the father) in order to provide for them as, she said, she had insufficient monies, after monies had been removed from her account, without warning and that she had told [X] of this and had, subsequently, returned those monies. The father asserted that the mother had received a $5,000.00 “Baby Bonus” from the government, the relevance of which is unclear.
The father tendered a document being a provisional order for restitution issued by the Commissioner of Victim’s Rights, Victim’s Services at Parramatta and dated 24 July 2014 which appeared to specify payments to be made to the mother as the designated victim in the sum of $6,500.00 consisting of a recognition payment of $1,500.00 and a special grant of $5,000.00 relating to the father’s conviction on 10 March 2010 and 15 October 2008 of contravening prohibition/restrictions in a then-current AVO. The father, as set out in paragraph 155 above, claimed the mother had “set up” this breach and then sought to claim monies which, he said, would have been pursued against him. This order appears to be a provisional order for restitution against the father which provides for him having 28 days from the date of service of the order (dated 24 July 2014) to object and to provide relevant supporting documentation. If no objection is filed the provisional order would become a judgment debt, enabling enforcement action to be taken. There was nothing put to the Court about this in final submissions.
Somewhat surprisingly, the mother’s evidence was that she had no knowledge or understanding of the provisional order for restitution in her favour. The father asserted that the mother was making complaints in respect of asserted contraventions in circumstances where, he said, there should not have been a conviction and that it was in some way related to the mother seeking to make money out of this position and a motive for her to prosecute these proceedings. The Court can make no findings relevant to this issue.
Other parenting matters
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
As to order 4(a) and (b) as sought by the mother and set out in paragraph 1 above, the Court notes that there is in existence a current AVO, as set out in paragraph 154 above. In light of the width of the existing restrictions/prohibitions contained within the current AVO, the Court sees no utility in granting an order in terms of that sought by the mother. There is no inconsistency between the proposed parenting orders and the AVO. The father can still deliver the children after spending time with him to within 200 meters of their school. The mother has the benefit of the existing AVO for 3 years, a breach of which would be actioned by the NSW Police on her complaint.
Restraints & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
In those terms, the injunctions as sought by the Independent Children’s Lawyer, in terms of orders 6(b) and (c) will not be made.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the Independent Children’s Lawyer’s proposal (as modified by the orders proposed by the Court) are, otherwise, in the best interests of the children and accordingly, the Court will so order.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 29 January 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Procedural Fairness
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