Leon and Winter

FAMILY COURT OF AUSTRALIA

LEON & WINTER

[2009] FamCA 646

FAMILY LAW – CHILDREN – With whom a child lives, spends time and communicates – Child to live with the mother and spend time with the father each alternate weekend and half of school holidays
FAMILY LAW – CHILDREN – Parental responsibility – Mother to have sole parental responsibility for the child

Family Law Act 1975 (Cth) ss 64, 60, 65D, 60CA, 65AA, 60CC, 61DA, 65DAC, 65DAE, 4, 61DA(4), 61DA(2), 65DAA.

Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Leon

RESPONDENT:

Ms Winter

FILE NUMBER:

NCC

1238

2008

DATE DELIVERED:

24 July 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

20 July 2009

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr Hartley

SOLICITOR FOR THE RESPONDENT:

Ms Martin, CBD Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Manning, Boyd Olsen

Orders

All former parenting orders are discharged.
The Mother shall have sole parental responsibility for the child …, born on … May 2004, including decisions about the nature of sporting and extra-curricular activities in which the child participates.
The Father shall have responsibility for decisions as to the child’s daily care during periods when the child is spending time with him.
The child shall live with the Mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time and communicates with the Father as follows, or as otherwise agreed:
5.1By telephone each Tuesday and Thursday night between 6.00 pm and 7.00 pm, and for that purpose the Father shall telephone the child on mobile telephone number 04…, and the Mother shall ensure that the child is able to receive the Father’s calls at that number.
5.2During New South Wales public school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on Friday 31 July 2009.
5.3During New South Wales gazetted school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
5.4During the New South Wales gazetted Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
5.5Between 6.00 pm and 8.00 pm on 3 May each year, but only if that date falls on a weekday during which the child would not already spend time with the Father pursuant to these orders.
Orders 4 and 5 are suspended during the following periods:
6.1From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the Father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the Mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years.
6.2From 12.00 noon on Easter Saturday until 12.00 noon on Easter Monday each year, during which period the child will spend time with the Father from 12.00 noon on Easter Sunday until 12.00 noon on Easter Monday, and with the Mother from 12.00 noon on Easter Saturday until 12.00 noon on Easter Sunday in even numbered years, with the same arrangements in reverse in odd numbered years.
6.3Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the Mother on Mother’s Day and with the Father on Father’s Day.
The child shall communicate with the Mother each Tuesday and Thursday night that the child is spending time with the Father pursuant to Order 5, between 6.00 pm and 7.00 pm, and for that purpose the Mother shall telephone the child on mobile telephone number 04…, and the Father shall ensure that the child is able to receive the Mother’s calls at that number.
For the purposes of implementing the time spent by the child with the Father, the Mother shall deliver and the Father shall collect the child at the commencement of the time to be spent with the Father at the McDonalds Restaurant at B, NSW, and the Father shall deliver and the Mother shall collect the child at the conclusion of the time spent with the Father at the same place.
For the purposes of implementation of Orders 5.2, 5.3, and 5.4, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day between those first and last days.
The Father is restrained from consuming alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.
Whilst the child is spending time with the Father, the Father is restrained from causing or permitting the child to be taken upon licensed premises, with the exception of the premises described as S Surf Lifesaving Club, and only then during daylight hours.
The Father is restrained from causing or permitting the child to sleep in the same bed as the Father.
Whilst the child is spending time with the Father, the Father is restrained from causing or permitting the removal of the child from Australia without the written permission of the Mother.
Each parent shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each parent, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.
Each parent shall ensure the child’s attendance at all educational, sporting, cultural, and extra-curricular events in which the child is enrolled or in which the child is due to participate.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The parties forthwith inform, and keep each other informed, in writing of their respective current residential address, landline telephone number, and mobile telephone number.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.

Notation

Orders 5, 6 and 8 hereof may be inconsistent with an existing Apprehended Violence Order made against the Father in favour of the Mother by the Local Court on or about 22 May 2008, in so far as that Apprehended Violence Order also purports to protect the child as a person who lives in a domestic relationship with the Mother, in which event Division 11 of Part VII of the Family Law Act applies and Orders 5, 6 and 8 hereof prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1238 of 2008

MR LEON

Applicant

And

MS WINTER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

Pending before the Court for determination is an Amended Response filed in these proceedings by the respondent mother on 30 June 2009. In that document the mother proposes a variety of parenting orders in respect of the parties’ child, born in May 2004.
The father of that child is Mr Leon. The applicant father formerly filed an Amended Application for final orders in these proceedings on 4 November 2008, but that document is no longer current. On 1 July 2009 the solicitor on record representing the applicant father filed a Notice of Discontinuance. The Notice of Discontinuance purported, on its face, to relate only to the father’s Initiating Application filed on 18 April 2008, but it is implicit that the Notice of Discontinuance is intended to also embrace the father’s Amended Application which was filed on 4 November 2008.
Shortly following, the father’s solicitor filed a Notice of Ceasing to Act on behalf of the father on 9 July 2009.
These proceedings came before the Court for final hearing in relation to parenting orders concerning the child on Monday 20 July 2009. At that time there was no appearance by or on behalf of the father. Tendered as Exhibit M1 during the hearing were two letters recently written by the mother’s lawyer to the father’s lawyer and the Independent Children’s Lawyer concerning the orders sought by the mother. That exhibit, in conjunction with the orders and notations made by Ryan J on 24 June 2009, satisfied me that the father was aware of the proceedings and had voluntarily absented himself.
The mother was represented at the hearing and pressed for the orders set out within her Amended Response. The Independent Children’s Lawyer was largely, but not completely, supportive of the parenting orders proposed by the mother.
In view of the absence of the father, the hearing proceeded on an undefended basis, with the mother prosecuting her Amended Response.
As a consequence of those circumstances, there was no contest as to the continuation of the child’s predominant residence with the mother. The real issues for determination were the allocation of parental responsibility for the child, the time that he would spend with his father, and the circumstances of his communication with the father.

Documents read

By reason of the father’s voluntary absence, only the following filed documents were read in evidence:
a)Notice of Discontinuance, filed by the father on 1 July 2009
b)Notice of Ceasing to Act, filed for the father on 9 July 2009
c)Amended Response, filed by the mother on 30 June 2009
d)Affidavit of the mother, filed 22 April 2008
e)Affidavit of Ms W, filed 22 April 2008
f)Affidavit of Ms E Winter, filed 1 May 2008
g)Affidavit of Ms K Winter, filed 1 May 2008
h)Affidavit of Ms P, filed 1 May 2008
i)Affidavit of the mother, filed 3 November 2008
j)Affidavit of the mother, filed 28 November 2008
k)Parenting Questionnaire of the mother, filed 13 March 2009
l)Affidavit of the mother, filed 2 July 2009
m)Children and Parents Issues Assessment, dated 10 July 2008 (Exhibit ICL 1)
n)Family Report, dated 29 April 2009 (Exhibit ICL 2)

Background facts

The father was born in 1963. At the time of hearing he was aged 45.
The mother was born in 1966, and at the time of hearing she was aged 43.
The parties commenced cohabitation in early 2000. There is some minor conflict in the evidence as to whether their cohabitation was commenced in February or March 2000, but nothing turns on the discrepancy. Although the parties never married and their relationship was punctuated by separations and reconciliations, they remained in a de facto relationship until final separation on or about 1 February 2008.
The subject is the only child of their relationship. Being born in May 2004, at the time of hearing the child was aged 5 years and 2 months.
Each of the parties had been in prior relationships and were parents to children born to those relationships.
The father has four natural children to two former relationships. The evidence discloses that none of those children lived with the parties during the currency of their relationship.
The mother has one older child to a former relationship. Similarly, it seems, that child did not live with the parties.
Following separation in February 2008, the mother and the child remained in occupation of the unit that had been occupied by the parties. The father vacated that home and initially lived with his brother for a period of about ten months. In or about January 2009 the father moved into the home occupied by his parents. Since then he has lived with his parents and some of his elder children. The mother and the child have continued to live together in the same area.
On 18 April 2008 the father filed an Initiating Application in the Local Court seeking both final and interim parenting orders in respect of the child. The application was made returnable before the Court on 22 April 2008.
The mother filed a Response on 22 April 2008.
At the Local Court on that day both parties were present and entered into interim terms of settlement, which terms were ratified by the Court. The consent orders made by the Court on that day included the following:
1That the father, [MR LEON| (“the father”) and the mother, [MS WINTER] (“the mother”) have equal shared parental responsibility for the child born […] May 2004 (“the child”).
3That the child spend time with the father as follows:
(a)from 9.00am on Saturday 26 April 08 to 9.00am on Monday 28 April 08; and
(b)such other times as mutually agreed.
4That the father communicate with the child between 6.00pm and 7.00pm each Tuesday and Thursday night and the father facilitate such telephone calls and that the mother have the child available to speak with the father.
6That the matter be adjourned to Friday 2 May 2008 for an interim hearing.
Pursuant to the terms of Order 6, the parties again appeared before the Local Court on 2 May 2008. The file received by this Court from the Local Court does not permit an inference as to whether the orders were made on that day following a defended hearing or consensually. Nonetheless, the Local Court that day made the following orders:
1.Child to live with Mother.
2.Child to reside with Father 9am – 5pm on the 4^th May, 2008.
3.Child to reside with Father on Thursday 5pm to Monday 5pm alternate weeks commencing 8/5/08.
4.Child to reside with Father alternate weeks Friday 9am to Saturday 9am commencing 16/5/08.
5.Exchange at McDonalds [B].
6.That these proceeding be transferred to the Family Court of Australia at Newcastle.
Curiously, despite the Local Court styling the orders as “final orders”, Order 6 recorded that the proceedings would be transferred to the Family Court at Newcastle. Self-evidently, there would have been no live proceedings to transfer if the parenting orders made by the Local Court finally disposed of the litigation. The orders must have been intended as an interim measure only.
Upon transfer of the proceedings to this Court the litigation progressed toward final hearing by the orthodox case management pathways.
On 13 August 2008 an order was made appointing an Independent Children’s Lawyer in the proceedings.
The father filed an Amended Application on 4 November 2008, following which the matter came back before the Court on 10 December 2008. On that date further interim parenting orders were made by the Court with the consent of the parties to the following effect:
1.The child […] born […] May 2004 is to live with the mother.
2.The child is to spend time and communicate with the father as follows:
2.1Commencing 18 December 2008 and continuing each second week thereafter from 5.00pm Thursday to 5.00pm Monday.
2.2Commencing 12 December 2008 and continuing each second week thereafter from 9.00am Friday to 9.00am Saturday.
2.3 From 3.00pm Christmas Day to 3.00pm Boxing Day in even numbered years.
2.4From 3.00pm Christmas Eve to 3.00pm Christmas Day in odd numbered years.
2.5 On the child’s birthday in 2009 from 1.00pm to 6.00pm.
2.6 From 5.00pm the day prior to Father’s Day to 5.00pm Father’s Day.
2.7By telephone each Tuesday and Thursday when the child is not in his care between 6.30pm and 7.00pm with the father to make such telephone call and the mother to ensure the child is available to take such call.
3.The father’s time with the child is to be suspended as follows:
3.1From 3.00pm Christmas Eve to 3.00pm Christmas Day in even numbered years.
3.2From 3.00pm Christmas Day to 3.00pm Boxing Day in odd numbered years.
3.3On the child’s birthday in 2009 from 9.00am to 1.00pm.
3.4From 5.00pm the day prior to Mother’s Day to 5.00pm Mother’s Day.
4.The child is to have telephone communication with the mother each Friday and Sunday when the child is not in her care between 6.30pm and 7.00pm with the mother to make such telephone call and the father to ensure the child is available to take such call.
5.The above orders are to be implemented by the mother delivering the child to the father at McDonalds [B] at the start and the father returning the child to the mother at McDonalds [B] at the end.
6.The father is to be restrained from consuming alcohol 12 hours prior to spending time with the child and at all times the child is in his care.
7.The father is to be restrained from taking the child to licensed premises at all times the child is in his care with the exception of the [S] Surf Lifesaving Club during daylight hours.
8.Both parties are to be restrained from denigrating the other party in the presence of the child or within hearing of the child or from allowing any third party from doing so.
9.The father is to ensure the child attends pre-school when required and in the event the child does not attend pre-school when required the father is to provide the mother with a medical certificate within 48 hours of obtaining such certificate.
The matter came before Ryan J on 30 March 2009 at which time her Honour made orders, including the following:
6.The mother shall attend upon her General Practitioner within seven (7) days after the date of this order for the purpose of obtaining a referral for one on one counselling to address issues of being a victim of family violence
7.The father shall attend upon [Mr D] with [M] Men’s Counselling Service to deal one on one with issues of alcohol use and being a perpetrator of family violence within seven (7) days after the date of this order.
In addition, her Honour made an order pursuant to s 62G of the Family Law Act that a Family Report be prepared by Family Consultant Mr C. Mr C had earlier prepared a Children and Parents Issues Assessment on 10 July 2008. In accordance with her Honour’s order, Mr C prepared a Family Report which is dated 29 April 2009. Pursuant to further procedural orders made on 1 May 2009, the Family Report was released to the parties.
The matter again came before Ryan J on 24 June 2009. At that time the applicant father appeared by his solicitor on the record. During the course of that appearance the father’s solicitor informed the Court that she had been instructed by the father to file and serve a Notice of Discontinuance of his application. Her Honour ordered that any Notice of Discontinuance was to be filed and served within 7 days, and specifically ordered that in the event of such a Notice being filed the proceedings would be heard on the appointed date on an undefended basis. As I have already noted, the Notice of Discontinuance was filed on behalf of the applicant father on 1 July 2009.

I am satisfied on the evidence that the father has been accorded procedural fairness, in that he was aware of the appointment of this matter for hearing on Monday 20 July 2009, that final parenting orders in respect of the child would be made following the hearing of the matter on or about that date, and that the nature of those parenting orders may be inconsistent with the wishes he expressed and orders he had proposed in the life of the litigation. As I mentioned earlier, the father chose not to participate in the final hearing.

Proposals of the mother

By reason of the father’s discontinuance of his application, the only live proposals then before the Court were those of the mother and the Independent Children’s Lawyer.
The mother filed an Amended Response on 30 June 2009. That document proposes materially different parenting orders from those proposed in her initial Response filed on 22 April 2008. Inferentially, the reason for the change of the mother’s position is her concern at a number of matters raised in the Family Report.
In summary, the mother seeks the following orders in her Amended Response:
1.That she have sole parental responsibility for the child.
2.That the child live with her.
3.That the child spend time and communicate with the father on alternate weekends, during school holidays, and by telephone.
4.That the changeovers be implemented at the McDonald’s Restaurant located at B.
5.Restrictions upon the father concerning the time spent by the child with him.

Proposals of the Independent Children’s Lawyer

The Independent Children’s Lawyer did not proffer to the Court any Minute of Orders proposed by her at any point during the hearing.
The submission of the Independent Children’s Lawyer was, ultimately, that she agreed with Orders numbered 1-3, 4(a), 4(d)-4(i), 5-13, and 16-19 proposed by the mother.
The Independent Children’s Lawyer’s disagreement with Order 4(b) was essentially confined to excision of the child spending Friday night with the father due to the regular pattern of the father’s unrestrained social life on that night of the week. That was also the reason for the Independent Children’s Lawyer’s opposition to block time that the child would spend with the father during school holidays, as permitted by Order 4(c) proposed by the mother.
As for Order 14, which sought to restrain the father’s behaviour in a vague way, the Independent Children’s Lawyer regarded it as unenforceable.
The Independent Children’s Lawyer supported the concept of restraining the father’s alcohol consumption during the time proximate to his care of the child, as set out in Order 15, but proposed that the embargo be for a period of 24 hours rather than only 12 hours.

Summary of the law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that the presumption of equal shared parental responsibility applies, the Court is obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Child’s best interests – Primary considerations

The family consultant appointed in these proceedings was Mr C. Mr C produced a Children and Parents Issues Assessment dated 10 July 2008, which became Exhibit ICL1, and a Family Report dated 29 April 2009, which became Exhibit ICL2. Mr C was not cross examined by either the respondent mother or the Independent Children’s Lawyer.
It is plain from the uncontradicted evidence of Mr C that the child currently enjoys a meaningful relationship with both of his parents and also both of his extended maternal and paternal families.[1] Indeed, that opinion of Mr C was the subject of relatively enthusiastic support from the mother. Although no oral evidence was adduced from the mother, her Counsel indicated openly in submissions that the child enjoys the time that he spends with the father and members of the father’s family. The child’s relationship with his father is, I am satisfied on the evidence, important, significant and valuable to him. The same can equally be said of the child’s relationship with his mother. The child is benefited by the continuity of his relationship with both parents.
[1] Exhibit ECL2 pars 38, 43, 54
There is no evidence that the child has been subjected to or exposed to any physical abuse by either party, or by members of their extended families.
The mother has adduced a considerable amount of evidence which establishes that she has been the subject of conduct on the part of the father which falls within the definition of “family violence” as found in s 4 of the Act. The evidence establishes serious threats of violence rather than actual violence, which caused the mother to be genuinely and understandably fearful of the father. However, none of that evidence establishes that the child has been privy to that behaviour. Consequently, although the father’s behaviour towards the mother has been appalling on some occasions, the child has seemingly been ignorant of it. As a result, there is no evidence to establish that the child has been exposed to a risk of psychological harm by reason of the family violence that has existed between his parents in the past.

Child’s best interests – Additional considerations

Neither party adduces any compelling evidence of views expressed to them by the child which would influence the Court’s decision about where he is to live and how much time he spends with his parents. That is consistent with the child’s presentation with the family consultant, who reports that the child did not express any views about his current or future living arrangements. [2]
[2] Exhibit ICL2 par 42
In any event, at the time of hearing, the child was barely 5 years of age and little weight could be reposed in any views expressed by him because of his relative lack of maturity.
As I have noted, the child enjoys a very positive relationship with both of his parents. It seems that theme also extends to his maternal and paternal families.
The child presently lives predominantly with his mother, and it is apparent that he also enjoys a close relationship with members of the mother’s extended family. When the mother and the child attended upon the family consultant they were accompanied by the mother’s sister and niece. [3]
[3] Exhibit ICL2 par 28
When the child spends time with his father that time is spent in the household where the father lives with his own parents and two of his elder children. [4] It is clear from the evidence that when the child spends time with the father he is the subject of care and supervision at the hands of both the father and paternal grandmother. The evidence discloses the child to be a happy child and I infer from the evidence, with no indication to the contrary, that that is at least in part due to the warm relationship he experiences with members of the father’s extended family.
[4] Exhibit ICL2 par 5
I find on the evidence that the mother has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and his father. Save for some specific issues, which I shall address in due course, the mother is on record as stating that she was happy for the child to continue seeing the father.[5] In fact, at the hearing, the mother advocated a regime of time to be spent by the child with his father that was more extensive than the regime advocated by the Independent Children’s Lawyer.
[5] Exhibit ECL2 par 31
The evidence adduced by the mother clearly demonstrates that, at least in the months immediately following the parties’ final separation, the father was not in a state of mind to communicate courteously with the mother and encourage a close and continuing relationship between the child and her. [6]
[6] Affidavit of the mother filed 22 April 2008, pars 8-14, Affidavit of Ms W filed 22 April 2008
The father’s recent withdrawal from the proceedings leaves the Court uncertain as to his current attitudes, but the mother’s Counsel announced during submissions that the father’s attitude towards her and his parenting responsibilities generally had been much more positive in recent months. I conclude from the father’s discontinuance of his application, and his failure to attend the final hearing, that he has decided not to oppose the parenting regime posited by the mother. The available inference, which I draw, is that he is largely content with the mother’s proposals and, at the very least, will not discourage the continuity of that arrangement.
Since interim orders were made by the Local Court on 2 May 2008, the child has been spending 5 nights in each fortnight with the father. That is achieved by the child staying with his father from Thursday afternoon until Monday afternoon in alternating weeks, and from Friday morning until the following Saturday morning in intervening weeks. The parenting orders now proposed by the mother would lead to a material change in that established pattern. She now proposes that the child spends time with the father each alternate weekend from Friday afternoon until Sunday afternoon and half of school holiday periods. [7]
[7] Amended response order 4
If adopted, that regime would mean that the child spends two nights in each fortnight with the father, together with half of the school holiday periods.
The Independent Children’s Lawyer advocated an even greater change to existing circumstances, submitting that the child should spend no block time with his father during any school holiday period, and that the alternate weekend cycle simply continue on an indefinite basis. In addition, the Independent Children’s Lawyer further submitted that the alternate weekend time spent by the child with his father should not commence until Saturday morning (in lieu of Friday afternoon) and should conclude on Sunday afternoon.
It was faintly submitted by the Independent Children’s Lawyer that the Court would even consider an order which would preclude the child spending alternate Saturday nights with the father, but that submission was not really pressed with any vigour. In my view, that would amount to a change to the current regime of unjustifiable magnitude. In addition, having the child spend only daytime hours with the father on Saturdays and Sundays each alternate weekend would simply serve to increase the number of changeovers between the parties. I do not regard those consequences to be in the best interests of the child.
The parenting regime proposed by the mother will certainly affect the duration of time that the child currently spends with the father and his extended paternal family on the fortnightly cycle. However, the reduction in the number of nights the child spends with his father each fortnight will be counter-balanced by the block periods of time that he will spend with the father during school holiday periods. I reject the submission of the Independent Children’s Lawyer that the child should only spend alternate weekends with his father, including during school holiday periods. The change in the circumstances that I intend to order will also be ameliorated by the provision that I intend to make permitting communication between the child and his father by way of telephone on a frequent basis.
The respective households of the parties are both located in the Central Coast area of New South Wales. The Notice of Ceasing the Act filed by the father’s solicitors on 9 July 2009 discloses the father’s last known residential address as …. The parenting questionnaire filed by the mother on 13 March 2009 discloses her residential address as …. The evidence discloses that the father estimated the driving time between the two households as approximately 20 minutes.[8] In the circumstances, there is no practical difficulty or undue expense in the child communicating with both parents and being transacted between them.
[8] Exhibit ICL2 par 7
By agreement between them, the parties have been meeting at the McDonalds restaurant at B on the Central Coast, without apparent incident, since April 2008 to implement changeovers with the child.[9] I see no reason to change that arrangement, and will order that changeover take place at that location.
[9] Order 5 made 22/4/08; Order 5 made 2/5/08; Order 5 made 10/12/08
There is no debate that the mother has an unfettered capacity to provide for all of the child’s needs, including his emotional and intellectual needs. Unfortunately, the evidence does not permit the same observation to be made in respect of the father. The evidence indicates a number of limitations upon the father’s past and future parenting capacity.
Firstly, the father has demonstrated an inability, or at least an unwillingness, to curb his alcohol consumption. With that problem in mind the following interim orders were made by the Court on 10 December 2008:
6The father is to be restrained from consuming alcohol 12 hours prior to spending time with the child and at all times the child is in his care.
7The father is to be restrained from taking the child to licensed premises at all times the child is in his care with the exception of the [S] Surf Lifesaving Club during daylight hours.
Despite the recency of those orders, the father met with the family consultant on 22 April 2009, and the family consultant reports as follows concerning that consultation with the father:
16[The father] volunteered that he was very annoyed with the Children and Parents Issues Assessment (of July 2008) because he had been labelled an alcoholic and a ‘piss-head’ and that the Judge had recently put so much emphasis on his drinking when he was not an alcoholic and had never been an alcoholic and he had never had a drinking problem at all. [The father] was annoyed that he had to sign undertakings about his alcohol use and about going to licensed clubs and about seeing a counsellor. [The father] complained about having to pay for the counselling which was expensive and which he thought would be a waste of time and later clarified that he would have all monies that he paid for counselling reimbursed in full but he would be out of pocket until he was reimbursed.
17[The father] explained that he was not an alcoholic and that if he wanted a drink he would have one but if he didn’t have a drink that was no problem for him. Similarly [the father] was clearly annoyed that the current Interim Court Orders prevented him from taking [the child] to a club to have a meal and also prevented [the father] taking [the child] to the swimming pool at a club as this was a licensed premise (sic). [The father] spoke at length about people that he knew who were alcoholics and he described these people as waiting outside clubs for the club to open and still being at the club in the evening and being on Centrelink payments because they were alcoholics. [The father] was clearly annoyed that he was being categorised as an alcoholic along with these other people that he knew.
18[The father] was repeatedly vague when asked about his current drinking levels and indicated that he might have a couple here and there but that he has been dinking much less than he previously did because he is involved in physiotherapy following his shoulder surgery and that he is in training and losing weight and getting fitter as part of he preparation for competing in future [sporting] competitions. [The father] was clear that in accordance with the current Interim court Orders he does not drink alcohol when [the child] is in his care.
During the hearing the Independent Children’s Lawyer tendered in evidence as Exhibit ICL3 a quantity of documents produced on subpoena by the Greater Building Society, together with a schedule which had been prepared from the contents of those documents. The documents were banking records relevant to the savings account of the father disclosing ATM transactions by the father on that account. The only permissible inference which arises from that exhibit is that, from a time proximate to the parties’ separation until the time that the subpoena was issued in April 2009, the father had operated his account by way of ATM transactions at an array of licensed premises with alarming frequency. On sometimes a daily basis the father made withdrawals of cash at premises described as … Cellars, … Cellars, … Leagues Club, … Cellars, … Bowling Club, … Hotel, … Liquor, … Liquor and … Cellars.
There is no direct evidence that the father has contravened Orders 6 and 7 made on 10 December 2008, but it is abundantly clear that the father has not abated his interest in alcohol and consumes it with a frequency which has the potential to adversely effect the level of care and supervision he is able to provide for the child. In addition, his compliance with Order 7 made on 30 March 2009 has been grudging at best. For those reasons I intend to make orders which will continue to impose reasonable restraints upon the father’s consumption of alcohol and his ability to take the child to licensed premises.
The evidence demonstrates that the father is likely to abdicate his responsibility for the child on occasions to the paternal grandmother. It was submitted that that was the reason for the Independent Children’s Lawyer’s opposition to an order that would provide for the child spending time with the father on Friday evenings. That reasoning is not shared by the mother. It was submitted by the mother that she has sufficient confidence in the father and the members of his extended family, and in particular the paternal grandmother, to ensure that the child is well cared for. Nevertheless, broadly stated, it is the reason for the mother’s proposal to curtail the fortnightly regime of time spent by the child with his father from Friday afternoon to Sunday afternoon.
Secondly, the father has in the past failed to ensure the child’s attendance at pre-school. It was conceded in submissions by the mother that that was a problem largely confined to the 2008 academic year when the child attended pre-school less frequently. In the 2009 academic year the child has been attending pre-school five days per week. It was conceded by the mother that the father had been adherent to her request for the child to be taken to pre-school on the days when he was in the father’s care. The problem which was regularly apparent during 2008 has now all but evaporated.

Thirdly, the sleeping arrangements for the child when he is staying with the father are unsatisfactory. The child reported to the family consultant that although he had his own bed at the father’s home, he regularly slept with the father in the same bed.[10] The family consultant reports that the mother feels it important for the child to sleep in his own bed, as he does when living with her. [11] I agree, and will order the father to ensure that that happens in future.
[10] Exhibit ICL2 par 40
[11] Exhibit ICL 2 par 36
There is a disturbing history of family violence in the relationship between the parents. The parties finally separated in February 2008. In early April 2008 the father sent numerous text messages to the mother which were graphic and threatening.[12] As a consequence of that behaviour, an Apprehended Violence Order (“AVO”) was made against the father in favour of the mother on or about 22 May 2008 by the Local Court. A copy of the order was not adduced in the evidence, so I am unaware of its precise terms, and unable to authoritatively determine whether the orders I intend to make in this matter are in any way inconsistent with it.
[12] Affidavit of the mother filed 22 April 2008, part G, pars 8-14 and affidavit of Ms W filed 22 April 2008.
Despite the existence of the AVO, the father periodically contacted the mother, escalating to an incident of stalking on or about 23 October 2008 and another intimidatory telephone message on 3 November 2008. The mother lodged a complaint with the police about the father’s contravention of the AVO,[13] which resulted in the father being charged with the offence of “Contravene AVO”. The father apparently entered a plea of guilty to that offence and was ultimately convicted of the offence on or about 19 February 2009. The nature of the sentence imposed on the father for that offence is not disclosed in the evidence. The mother’s evidence is silent about the occurrence of any further unsavoury incidents since that time.
[13] Affidavit of the mother filed 28 November 2008 Annexure B
The AVO which was made against the father on or about 22 May 2008 is not due to expire until 22 May 2010.
In conclusion, it ought be noted that the mother did seek out the counselling required of her by Order 6 made on 30 March 2009.

Parental responsibility

It was urged upon the Court by both the mother and the Independent Children’s Lawyer that parental responsibility in respect of the child ought be allocated solely to the mother. Such submissions were not consistent with the recommendations of the family consultant, who recommended that both parents be allocated equal shared parental responsibility, provided that the father’s communication with the mother in the future was respectful and child-focused.[14]
[14] Exhibit ICL2 pars 55, 63.
As I have already noted, s 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility for him. The presumption does not apply where there has been child abuse and/or family violence, and is otherwise rebuttable in the best interests of the child. It was submitted to the Court that in the circumstances of this case the presumption does not apply specifically by reason of the evidence establishing the existence of family violence, and more generally, that such an allocation of parental responsibility would not be in the best interests of the child resulting in rebuttal of the presumption.
I have ultimately concluded that I ought accede to the submissions of the mother and the Independent Children’s Lawyer and allocate parental responsibility for the child solely to the mother for the following reasons.
Firstly, the evidence unassailably establishes that the father has engaged in conduct towards the mother since the time of their separation which constitutes “family violence” within the meaning of that term as defined in the Act. Although there is a paucity of evidence as to the occurrence of family violence during 2009, the evidence about its occurrence during 2008 is compelling.
Secondly, the father has conducted himself in a way which demonstrates that he is largely unconcerned about participating in the decision-making process regarding major long-term issues affecting the child’s life. Although the father is apparently not currently overtly rude and antagonistic towards the mother, the level of his communication with the mother manifests a lack of commitment.[15] Despite the father having completed a “Parenting After Separation” program, the evidence does not permit me to conclude that the father has interested himself in issues of significance to the child. The father was aware that the mother was seeking an order that parental responsibility for the child be allocated to her solely at the time he decided to discontinue his application and then withdraw from these proceedings.
[15] Exhibit ICL 2 par 33
Thirdly, the evidence discloses that on many occasions in the past, the father has been content to allow the paternal grandmother to assume what would otherwise be the father’s control of the child when the child is spending time in that household. It would seem that the father is largely unconcerned about playing a pivotal role in the determination issues of significance to the child.
Fourthly, the three eldest children of the father lived with the paternal grandmother for most of their lives. The father largely maintained a separate household from the paternal grandmother and his three eldest children, and largely abdicated his responsibility for those children to the paternal grandmother. The fourth child born to the father, being an 8 year old son, has only been seen by the father once when that child was aged approximately 3 months.[16] The overall pattern of the father’s historical role as a parent has been to relinquish parental responsibility for his children to others.
[16] Exhibit ICL 2 par 15
Although the family consultant recommended the allocation of equal shared parental responsibility for the child, that recommendation is qualified. The family consultant harbours a residual concern that the father will not materially improve his level of communication with the mother. If that fear were to be realised then the family consultant considers that the matter ought be brought back before the Court with a view to allocating parental responsibility for the child solely to the mother.
The Court is charged with the responsibility to make final orders disposing of the proceedings and minimising the prospect of further litigation wherever reasonably possible. In the circumstances of this case, as I have outlined them, I am satisfied that it is just and proper to allocate parental responsibility for major long-term issues affecting the child to the mother solely.

Living arrangements

Having found that the presumption of equal shared parental responsibility is rebutted on the evidence, it is not mandatory for me to consider the child spending equal, or alternatively, substantial and significant time with the father. Of course, that could still be the outcome if the evidence demonstrated such a result to be in the child’s best interests. However, I consider it not to be.
I am satisfied on the evidence that the child’s best interests are served by him living predominantly with the mother, whilst maintaining reasonably regular contact with the father, and having the benefit of more extended time with the father during school holidays. I am satisfied that the child’s safety will not be compromised in the care of the father under that regime because of the presence of members of the father’s extended family who will be available to the father to assist with the child’s care.
That outcome is consistent with the proposal of the mother and the recommendation of the family consultant[17]. I see no logical reason to reject that evidence. Although that outcome is not consistent with the submission of the Independent Children’s Lawyer, it is not entirely repugnant either.
[17] Exhibit ICL2 pars 56-58

Explanation of orders

The raft of orders I intend to make are generally in accordance with those proposed by the mother. The variations between the Court’s orders and the mother’s proposals are, in large measure, merely semantic.
For those variations that are substantive, I will independently explain them.
I decline to make Order 8 proposed by the mother. I regard it as unenforceable in the terms that it is expressed. I do not know what “direct, verbal or psychological violence” is. There is no evidence that the child has been inflicted with physical violence by either party. I am satisfied that the circumstances are sufficiently covered by the terms of Order 16 that I have made.
I decline to make Order 11 proposed by the mother. It is an expression of intent rather than an enforceable order. Nothing precludes the parents from attending a public event to watch the child’s participation in it.
I decline to make Order 14 proposed by the mother. I agree with the submission of the Independent Children’s Lawyer that it is unenforceable in the terms that it is expressed, because of its vagueness.
I decline to make Order 17 in the terms that it is sought by the mother. I do not regard it as appropriate to preclude, for example, the father taking the child on an inter-state holiday during the block time that the child will spend with the father during the school holidays.
I decline to make Order 19 as sought by the mother. Section 60I of the Act imposes an obligation upon parties to seek out family dispute resolution before making application to the court for orders. If the exceptions to that obligation, created by s 60J, applied to these parties then that would also be a good reason why the provisions of Order 19 proposed by the mother ought not be imposed. The order proposed by the mother seems to intend replication of statutory obligations, making it superfluous.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate:

Date:

[2009] FamCA 646

24 July 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction