Kivlen and Taber

[2013] FCCA 1391

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIVLEN & TABER [2013] FCCA 1391

Catchwords:
FAMILY LAW – Parenting – spend time arrangements.

Legislation:  
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant: MR KIVLEN

Respondent: MS TABER

File Number: DGC 439 of 2008

Judgment of: Judge Halligan

Hearing dates: 15, 16 August 2013

Date of Last Submission: 16 August 2013

Delivered at: Parramatta

Delivered on: 23 September 2013

REPRESENTATION

Solicitors for the Applicant: Father In Person

Counsel for the Respondent: Mr Trim

Solicitors for the Respondent: Robin Harrison and Assoc

Counsel for the Independent children’s lawyer: Mr Hoult

Solicitors for the Independent children’s lawyer: Lamp Family Lawyers

ORDERS

1. The mother shall have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2005.

2. The children shall live with the mother.

3. The children shall spend time with the father-

   (a)Each alternate Saturday from the conclusion of the children's sporting events to 7.00 pm and if the children are not attending sporting events from 11.00 am to 7.00 pm, commencing on the second Saturday after these orders are made;

   (b)From 11.00 am to 7.00 pm on 24, 26 and 27 December each year;

   (c)From 11.00 am to 7.00 pm on the first Monday and Tuesday of each of the short school holidays and on the Monday and Tuesday of the last week of each Christmas school holidays; and

   (d)Otherwise as agreed by the parents.

4. The father's time under the preceding order-

   (a)Shall take place in the Melbourne metropolitan area; and

   (b)Shall be conducted with the substantial attendance of at least one of the following-

   (i)the paternal grandfather Mr K;

   (ii)the paternal uncle Mr M;

   (iii)the paternal aunt Ms J;

   (iv)Ms O;

   (v)A person agreed on by the parents.

5. Unless the parents otherwise agree, the father shall collect the children at the commencement of his time with them at the children’s sporting events, or at the mother's home if the children are not attending a sporting event, and the father shall return the children at the conclusion of his time to the mother at her home.

6. The father is restrained from consuming alcohol ten hours before, and during, his time with the children.

7. The father's time under order 3(a) is in addition to his time under the other provisions of order 3.

8. The father may attend the children’s sporting events.

9. Each party shall inform the other immediately via text message of any emergency relating to the children or either or them and of any inability to attend for any periods of the father's time with the children.

10. The mother is restrained from causing or permitting the children or either of them to travel in a motor vehicle driven by an unlicensed driver.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DGC 439 of 2008

MR KIVLEN

Applicant

And

MS TABER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These parenting proceedings concern the time the applicant father should spend with the parties’ two children, [X] and [Y].

2. The father seeks orders that he spend time with the children each alternate weekend from Friday to Sunday, to be spent alternating between where he lives in southern New South Wales, and in the Melbourne area where the mother lives when he has suitable accommodation for the children in the Melbourne area.  Until he has suitable accommodation in the Melbourne area, he proposes that on the occasions he is to spend time with the children there he have them for eight hours on the Saturday of that weekend.  He also seeks orders that he spend time with the children for an unspecified period every Christmas Eve and for one week of the short school holidays and for two weeks during the Christmas school holidays.  The father also sought an order that the maternal grandfather not have “unsupervised access” to the children.

3. The mother seeks orders that she have sole parental responsibility for the children and that they live with her.  Ultimately the father agreed to both these orders.  She sought orders that the father spend time with the children-

   a)Each alternate Saturday from the conclusion of the children’s sporting events until 7.00 pm, or if the children have no sporting events, from 11.00 am to 7.00 pm, to continue during school holidays, and the father to be permitted to attend the children’s sporting events;

   b)Each Christmas Eve from 11.00 am to 7.00 pm;

   c)From 11.00 am to 7.00 pm on the first Monday and Tuesday of each of the short school holidays;

   d)From 11.00 am to 7.00 pm on the two days following Christmas Day each year;

   e)From 11.00 am to 7.00 pm on the Monday and Tuesday of the last week of the Christmas school holidays each year; and

   f)Otherwise as agreed between the parents.

4. The mother sought orders that the father’s time with the children be spent in the Melbourne metropolitan area, that the father’s time be spent with the substantial attendance of the paternal grandfather, a named paternal uncle, a named paternal aunt, or another named person, that changeovers occur at her home, and that the father be restrained from consuming alcohol for 12 hours before and during his time with the children.

5. The Independent Children’s Lawyer supported the orders sought by the mother, subject to the following-

   a)The Independent Children’s Lawyer proposed that the father’s time be with the substantial attendance of the persons named by the mother or any other person the parties may agree;

   b)Changeovers at the conclusion of the children’s sporting events be at the sporting venue, and other changeovers be at the mother’s home or as agreed by the parties; and

   c)

   The restraint on the father’s consumption of alcohol be for

   
   

   10 hours before and during the father’s time with the children.

Background

1. The mother is aged 39, the father 34.  [X] was born [in] 2003, and is thus aged nine.  [Y] was born [in] 2005 and is eight.

2. The parents cohabited from about September 2003 until

   
   

   September 2005, and from October 2006 until January 2007.

3. The mother has been the children’s primary carer at all times.

Credit of witnesses

1. The parents called no witnesses other than themselves in their respective cases.  The Independent Children’s Lawyer relied on an affidavit of a psychiatrist who examined the father.  A Family Report prepared by a Family Consultant was admitted into evidence, as was a Memorandum to the Court from another Family Consultant.  Neither of the Family Consultants was required for cross-examination and nor was the psychiatrist, and I accept their unchallenged evidence.

2. Each of the parents was cross-examined.

3. I was satisfied that the father was an unreliable witness.  He lied to the court when he said he withdrew the funds from a bank account that was subject to an injunction restraining him from operating it prior to the injunction being granted.  When it became clear to the father that the bank records would be produced to the court later that day, he admitted withdrawing the funds after the injunction was granted.  I am also satisfied he lied when he said he could remember nothing at all about criminal charges against him that are before the Magistrates Court in September.  It became clear in later evidence that he could remember quite a lot about the circumstances giving rise to the charge, which he then said was for common assault of the girlfriend of his brother.

4. The father also gave inconsistent evidence about some matters.

5. He professed not to recollect some events and incidents raised by the mother that were adverse to him, suggesting his memory was affected by anti-depressant medication he took on medical advice for a period up to about three years ago.  However, he produced no evidence to corroborate his assertion that the medication had this and other effects he suggested it had on him as a means of seeking to exculpate himself in relation to various violent incidents in which he was involved.  But in light of clear examples of him lying, I am not satisfied this was other than an attempt to deflect responsibility for his own violent actions.

6. I was not satisfied that the mother’s credit as a witness was successfully challenged.

7. I therefore prefer the mother’s evidence over the father’s where they differ, and in particular I accept her evidence of the numerous incidents of violence by the father that she particularised in her evidence.

The law

1. The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.

2. The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D).  There have been no parenting plans about these children, so s.65DAB is not relevant.

3. In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA).  Section 60CC indicates how the court determines the children's best interests, and s.60B sets out the objects and principles of Part VII.

4. The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:

   “10.  Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A).  The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”

5. If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA, and see MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)) (MRR v GR).  If so satisfied on both these matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).

Discussion

1. I am satisfied this matter raises squarely the need to protect these children from exposure to violence with the father.  I am satisfied these children can benefit from knowing their father and having a relationship with him.  However, not only has the father, I am satisfied, been physically and verbally violent to the mother throughout their relationship, I am satisfied violence is the hallmark of the father’s interpersonal relationships, he having been involved in violent and threatening incidents with family members and with other women with whom he has formed romantic relationships.  He has been subject to intervention orders in Victoria for the protection of the mother and a woman with whom he had a relationship before his relationship with the mother began, and I am satisfied recently took the children with him when he attended the home of a woman and shouted and swore at her.  He is also currently facing charges involving violence where the alleged victim is the girlfriend of his brother.

2. Whether the woman whose home he recently attended with the children was a girlfriend with whom he had broken up, as the mother believed, or was a woman at whose home the father expected to spend time with the children that day but who was not at home when the father arrived with the children, as the father suggested, ultimately matters not.  Even on the father’s version of this incident, I am satisfied the father reacted with an open display of aggressive anger, swearing in the children’s presence and upsetting and frightening them.

3. [X] as reported by the Family Consultant in the Family Report said she is happy to go with her father for the day after her sport is over.  She felt the current arrangements, of fortnightly time in Melbourne on Saturday from after the children’s sport until 7.00 pm, was just right.  [Y] told the Family Consultant he liked to see his father, would want to sleep over, but did not want to go to the father’s house.  Despite saying he would like to sleep over, albeit not going to the father’s house, [Y] also said he did not want to miss his sport, suggested he would like to do a greater variety of things with his father during their time, and commented that he thought his father sometimes got bored during the seven hours a fortnight they have each fortnight and that he did not really think his father wanted to spend that much time with him.

4. In the observation session with the father, [Y] was observed to be more demonstrative of his affection for his father than his sister, who appeared more reserved.  However, both children were observed to be willing and happy to spend time with their father in the observation session.  Both children gave their father an affectionate farewell at the end of the session.

5. I note the children’s ages, and consider that their views should be given some significance, subject to the protective concerns that arise in this case.

6. The father admitted that he swears in front of the children.  He said he did not think it appropriate and had tried to stop but without success.  He said he did not think he could stop swearing in front of the children.  This is indicative of the father’s lack of self-control, and inability or unpreparedness to modify his behaviour for the benefit of his children.

7. The father admitted having had problems with excessive alcohol consumption, but was adamant he was not an alcoholic, and did not have an alcohol problem.  I accept the psychiatrist’s assessment of the father as having alcohol use disorder in partial remission, and find that alcohol potentially remains a problem for the father.  Given his admitted level of regular alcohol consumption, which I am not satisfied was disclosed to the psychiatrist, his denial that he has any problem he needs to address with alcohol, and his disregard of the injunction restraining him from operating a bank account, I am concerned that even with an order in place that he not consume alcohol when he has the children and for a period before having them, there is a very real risk that the father may drink to excess when the children are with him, heightening the risk he will become involved in another violent incident.  That risk would be mitigated if the children were not with him overnight.

8. The children love their father, and he loves them.  However, the children have been exposed to the father’s violence to the mother in the past, and were upset by his recent display of anger and swearing.  Both children told the Family Consultant who prepared the Family Report that the father swears a lot.  [X] said the father yells when he is angry, she had heard him being angry and upset, and she would like her father not to swear.  [Y] said his father swears a lot and recently broke up with his girlfriend, and said he did not like to think of the bad things his father had done.  Both children commented that their mother worries that their father will get into a fight when they are with him.  While this indicates that the mother has not shielded the children from her concerns about the father’s propensity for violence and the potential risk this poses to the children, because of the extent to which violence is a mark of the father’s interpersonal relationships, and the extent to which the mother was a victim of the father’s verbal and physical abuse, I am not satisfied it is appropriate to criticise the mother for this.

9. The father sought to explain away the children’s negative comments about him by asserting that the mother had in effect told them what to say.  However, there is no suggestion in the Family Report that the Family Consultant considered that the children were merely parroting what they had been told to say.  Nor did the father seek to cross-examine the Family Consultant to put that suggestion to her.  There is simply no evidence that the children were doing anything other than expressing their own views.  The father’s attempt to explain away the children’s adverse comments about him was typical of the father’s attitude and response to various parts of the evidence that was adverse to him.  There was no evidence offered to support his attempts to rebut or deny the matters adverse to him - he simply did not accept them, he saw no need for him to change in any way, and hence there is real cause for concern about the potential for these negative matters to continue and to pose an ongoing risk to the children.

10. While as I have said the father loves his children, I was left unsatisfied that he understands the children’s needs, particularly at an emotional level, or that he understands the potential for harm to the children from being exposed to violence, or that he is able to put the children’s needs ahead of his own or his animosity towards the mother.

11. One example of the father’s being unable or unwilling to take a child focus and to separate the children from his conflictual relationship with the mother was in relation to his proposals for time with the children.  I had emphasised to the father at the beginning of the trial as he was unrepresented that he needed to think through his proposals in greater detail than indicated in the orders set out in his amended application, including thinking of the time the children were to come to him and return to the mother, changeover arrangements, and similar practical considerations, especially as the parties lived a significant distance apart, the father in southern New South Wales, the mother in metropolitan Melbourne.  Yet when cross-examined on the second day of the trial by counsel for the Independent Children’s Lawyer, the father clearly had not thought about the practicalities of how the mother would get the children to and from southern New South Wales on the weekends he sought to have them there.  His attitude was that this was the mother’s problem.  He could not or would not realise that these practicalities impacted on the children.

Decision

1. Because of the family violence, the extent to which violence has been a feature of the father’s interpersonal relationships with family, friends, girlfriends and partners, the risk of the father abusing alcohol, his lack of a child focus, his inability to separate the children’s needs from his animosity for the mother, and the fact that since the parties finally separated the father’s time with the children has not been regular and has not involved overnight care of the children other than on very few occasions, I am not satisfied that it would be in the best interests of these children to spend any overnight time with the father.  This view is reinforced by the children’s views as reported by the Family Consultant.

2. I am satisfied that the children do want to see their father, they do want a relationship with him, but his swearing and propensity for violence frightens the children.  They are aware their mother has been a victim of the father’s physical and verbal abuse, and they are aware of the mother’s understandable and appropriate apprehension about their safety with the father.  It is therefore entirely understandable that they would be apprehensive about spending more than day time with the father at this stage.  Whether the father can gain the trust and confidence of not only the children but also the mother to increase his time with the children to overnight time remains to be seen.  But unless he can curb his violent and aggressive behaviour, which the psychiatrist labelled as antisocial behaviour disorder, it is unlikely that overnight time could ever be contemplated for these children with the father.

1. Consistent with the opinion of the psychiatrist and the Family Consultant who prepared the Family Report, I am satisfied that the arrangement proposed by the Independent Children’s Lawyer is the one that will be in the children’s best interests.

2. I note the submission on behalf of the Independent Children’s Lawyer that were it not for the recommendation of the Family Consultant and the mother’s  preparedness to support and facilitate a fortnightly day time only regime, the Independent Children’s Lawyer would have proposed that the children not spend any time with the father.  The protective concerns in this matter are significant, all the more so because the father cannot or will not acknowledge them.  But on balance, with an injunction about the father’s alcohol consumption and the presence of trusted members of the father’s family during his time with the children, I am satisfied that the risk to the children can be mitigated sufficiently to allow the children the benefit of spending time with the father.

3. In relation to the order the father seeks that the maternal grandfather not have “unsupervised access” to the children, the father said that the maternal grandfather was an unlicensed driver and had driven the children.  That was the only basis advanced for this order.  The father said he had confronted the maternal grandfather about his issue on two occasions, when there was violence between the two men.

4. The father’s evidence on this issue is uncontradicted and was not challenged in cross examination.  I therefore accept it.  However, it does not warrant an order in the terms sought by the father.  I will instead order that the mother not permit the children to be conveyed in a motor vehicle driven by an unlicensed driver.  That is sufficient to address the father’s complaint.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  23 September 2013