Lilley & Wytkin

FEDERAL CIRCUIT COURT OF AUSTRALIA

LILLEY & WYTKIN

[2014] FCCA 2461

Catchwords:
FAMILY LAW – Parenting orders – whether the presumption of equal shared parental responsibility applies – time with father who has no fixed address – allegations of alcohol and drug abuse.

Legislation:

Family Law Act 1975, ss.61DA, 60CC, 60B, 60CA

Mazorski v Albright (2008) 37 FLA 518
Tait v Dinsmore (2007) FamCA 1383
Godfrey v Sanders (2007) FamCA 102

Applicant:

MS LILLEY

Respondent:

MR WYTKIN

File Number:

DGC 797 of 2013

Judgment of:

Judge Small

Hearing date:

9 July 2014

Date of Last Submission:

9 July 2014

Delivered at:

Dandenong

Delivered on:

28 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr T. Weerappah

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

None

ORDERS

All previous parenting orders in relation to the children X born (omitted) 2004 and Y born (omitted) 2006 (“the children”) are hereby discharged.
The mother shall have sole parenting responsibility for the children in relation to issues of education and health.
The parties shall have equal shared parental responsibility for the children in relation to all other issues including but not limited to the children’s living arrangements, their names and religious observance.
The mother shall inform the father in writing (which includes by text message or email) at least 21 days before making decisions about the following matters:
(a)Any change in the children’s school;
(b)Any religious instruction the children receive, whether at school or otherwise;
(c)Any non-emergency surgery or serious medical treatment the children or either of them is to undergo;
(d)Any proposed change in the children’s name;
(e)Any proposed relocation of more than 20 kilometres from her present residence.
and the father shall provide his views, if any, in relation to all such information within ten days of receipt.
To avoid confusion, all final decisions in relation to the matters set out in paragraph 4(a) and (c) hereof shall rest with the mother.
The children shall live with the mother.
The children shall spend time and communicate with the father as follows:
(a)Until the father provides the mother with evidence that he has appropriate overnight accommodation for the children, such evidence to include a copy of a lease and photographs of the children’s sleeping arrangements:
(i)During school terms from 10:00 am to 6:00 pm on each alternate Sunday commencing on the Sunday after the date of these Orders;
(ii)During school terms from after school to 7:00 pm each alternate Monday commencing on the second Monday after the date of these Orders;
(iii)In school term holidays each year from 10:00 am to 6:00pm on three days by agreement and failing agreement on the first Sunday, the first Friday and the second Wednesday;
(iv)In the long summer vacation each year from 10:00 am to 6:00 pm on three days in each of the first, third and fifth weeks by agreement and failing agreement on the Sunday, Wednesday and Saturday beginning on the first Sunday;
(v)From 9:00 am to 12 noon on Christmas Day in 2014 and each alternate year thereafter;
(vi)From 12 noon to 6:00 pm on Christmas Day in 2015 and in each alternate year thereafter;
(vii)On each of the children’s birthdays and the father’s birthday each year by agreement and failing agreement, from after school until 7:00 pm if a school day and from 10:00 am to 2:00 pm in even numbered years and 2:00 pm to 6:00 pm in odd numbered years if a weekend day when the children would not usually be spending time with the father;
(viii)By telephone between 5:00 pm and 6:00 pm each Wednesday that the children are not in the father’s care with the father to provide the children with a mobile phone for that purpose and the mother to ensure that the mobile phone is charged, switched on and in the possession of the children at those times and that they are permitted to take the call;
(ix)From 10:00 am to 6:00 pm on Fathers’ Day each year;
(x)At other times by agreement between the parties;
(b)Once the father has provided the mother with evidence of his ability to accommodate the children as set out in in sub-paragraph (a) hereof:
(i)During school terms on each alternate weekend from after school on Friday until the commencement of school on Monday commencing on the next weekend when the children would be spending time with the father pursuant to sub-paragraph (a)(i) hereof;
(ii)During school terms on each alternate Monday from after school until 7:00 pm commencing on the next Monday when the children would be spending time with the father pursuant to sub-paragraph (a)(ii) hereof;
(iii)For half of all school term holidays by agreement and failing agreement from 12 noon on the first Saturday to 6:00 pm on the second Sunday in the Term 1 and Term 3 holidays and from 12 noon on the first Friday to 6:00 pm on the third Saturday in the Term 2 holidays;
(iv)For three weeks in the long summer holidays each year by agreement and failing agreement from 12 noon on the first Sunday to 12 noon on the fourth Sunday in 2014-2015 and in each alternate year thereafter, and from 12 noon on the fourth Sunday to 12 noon on the Sunday before the commencement of the new school year in 2016 and in each alternate year thereafter;
(v)From 4:00 pm on Christmas Eve to 12 noon on Christmas Day 2014 and in each alternate year thereafter;
(vi)From 12 noon on Christmas Day until 6:00 pm on Boxing Day in 2015 and in each alternate year thereafter;
(vii)On each of the children’s birthdays and the father’s birthday each year by agreement and failing agreement, from after school until 7:00 pm if a school day and from 10:00 am to 2:00 pm in even numbered years and 2:00 pm to 6:00 pm in odd numbered years if a weekend day when the children would not usually be spending time with the father;
(viii)From 6:00 pm on the day before Fathers’ Day to 6:00 pm on Fathers’ Day each year;
(ix)By telephone between 5:00 pm and 6:00 pm each Wednesday that the children are not in the father’s care with the father to provide the children with a mobile phone for that purpose and the mother to ensure that the mobile phone is charged, switched on and in the possession of the children at those times and that the children are permitted to take the call;
(x)At other times by agreement between the parties.
The father’s time with the children as set out in paragraph 7 hereof shall suspend at the following times:
(a)On each of the children’s birthdays and the mother’s birthday each year by agreement and failing agreement from 2:00 pm to 6:00 pm in even numbered years and 10:00 am to 2:00 pm in odd numbered years if a weekend day when the children would usually be spending time with the father;
(b)From 12 noon on Christmas Day until 6:00 pm on Boxing Day in 2014 and in each alternate year thereafter;
(c)From 4:00 pm on Christmas Eve to 12 noon on Christmas Day 2015 and in each alternate years thereafter;
(d)From 6:00 pm on the day before Mothers’ Day to 6:00 pm on Mothers’ Day each year;
(e)At other times by agreement between the parties.
The time the children spend with the father pursuant to paragraphs 5(a)(i)-(ii) and 5(b)(i)-(ii) hereof shall suspend during school term holidays and shall recommence after each school term holiday period as if the holidays had not intervened.
Changeovers that do not occur at the children’s school shall take place at a venue to be agreed and failing agreement at the main entrance to the Coles supermarket at (omitted).
The mother shall notify the father of any sporting, social or other extra-curricular activities the children are scheduled to attend or participate in during their time with the father and the father shall ensure that the children attend or participate in such events.
Neither party shall in future enrol the children in any extra-curricular activity to take place during the children’s time with the other parent without first having obtained the consent of the other parent in writing.
The parties, their servants and agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, and
(b)discussing these proceedings,
in the presence or hearing of the children and from permitting any other person to do so.
For twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with him), and during all such time spent, the father is hereby restrained by injunction from ingesting, consuming or using any legal or illegal drug or substance, or alcohol, save and except for:
(a)any legal medication prescribed for him by a registered medical practitioner, and taken or used by him strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by him strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
The mother shall be at liberty to require the father to undergo a breathalyser test on a device provided by her at the beginning and/or conclusion of any time the children spend with the father, and:
(a)If he provides a positive reading for alcohol at the commencement of time spent, she shall be at liberty to cancel that period of time spent between the children and the father
(b)If he provides a positive reading for alcohol at the conclusion of time, she shall be at liberty to cancel the next scheduled period of time spent.
The parties shall forthwith commence and maintain a communication book with respect to the children, which book shall travel with the children between the parties’ respective places of residence, and they shall write in it any information about the children which they believe is necessary for the other parent to know, such as any medications they need to take, or any social or sporting events which they are to attend/participate in during the other parent’s time with the children, and neither shall use the communication book for any other purpose.
Each of the parties shall notify the other as soon as practicable in the event that the children or either of them suffer a serious illness or injury while he is in their respective care, and shall authorise any medical practitioner who is treating the children or either of them to consult with the other party, although the mother shall have final responsibility for making decisions about their treatment.
If the children or either of them are hospitalised for any reason, the mother shall immediately inform the father and the father shall be permitted to visit the relevant child or the children every second day of his/their hospitalisation by agreement and failing agreement for a period of no more than 2 hours, the proposed times of such visits to be notified to the mother by text message the night before.
The mother shall immediately authorise any school in which the children or either of them are enrolled to provide to the father at his expense all school reports, photographs, newsletters, notices and the like that are usually provided to parents.
The father shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or family are usually invited, subject only to the school’s discretion.
Each party shall keep the other informed of their residential address and contact details and shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
The mother shall advise the father of any medication prescribed for the children or either of them, including the dosage prescribed, and shall ensure that such medication travels with the children, and the father shall ensure that the relevant child takes such medication according to its prescription.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 797 of 2013

MS LILLEY

Applicant

And

MR WYTKIN

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are about the living arrangements for two young boys, X born (omitted) 2004 and Y born (omitted) 2006 (“the children”).
X and Y live with their mother, Ms Lilley, and since their parents separated in March 2008 they have spent varying amounts of time with their father, Mr Wytkin.
Various circumstances have led to the previous arrangements for the care of the children breaking down, and now their parents seek the court’s assistance in deciding what those arrangements will be in the future.
The issues in this case can be stated as follows:
A.    Should parental responsibility for the children be shared between the parents or should Ms Lilley bear that responsibility alone?
B.     Does Mr Wytkin have a drinking problem which interferes with his ability to take care of the children?
and
C.     When, how often and for how long should the children spend time with their father?

Background

Mr Wytkin, who is a (country omitted) citizen, met Ms Lilley through the Internet and they commenced a relationship when Mr Wytkin moved to Australia in late 2001.
X and Y are the only children of that relationship although Mr Wytkin has another son, A, who is almost 14 years old and who lives in (country omitted). Mr Wytkin has no contact with A.
The parties separated in March 2008, and until March 2010 they essentially shared the care of the children, with Mr Wytkin looking after them on weekends while Ms Lilley was working, and each alternate Tuesday to Thursday.
Mr Wytkin was required to leave his rental accommodation in March 2010 and the shared care arrangement then ceased until September 2010 when he obtained new housing. Ms Lilley obtained an Intervention Order against Mr Wytkin at that time as a result of what she saw as harassment. Once the shared care arrangement recommenced it continued until about October 2012.
In mid-October 2012, the mother alleged that the father had presented for time with the children in an intoxicated state. As a result she stopped all contact between the father and the children.
In early 2013 Ms Lilley applied for an intervention order against Mr Wytkin because he had been contacting her about seeing the children. That application was ultimately dismissed.
On 28 March 2013 Mr Wytkin picked the children up from school without Ms Lilley’s knowledge and she filed an application in this court for a recovery order together with a Notice of Child Abuse, Family Violence, or Risk of Family Violence.
Once the children were returned to their mother they did not spend weekend time with Mr Wytkin again until orders were made in November 2013.
In November 2013 Mr Wytkin was convicted of a drink driving offence and lost his licence for 12 months. As a result, in about late March or early April 2014, Mr Wytkin lost his employment and subsequently became homeless as a result. As a (country omitted) citizen he is not eligible to receive unemployment benefits in Australia.
As a result of that turn of events, he has been unable to have the children overnight as he has been staying with a friend and does not have suitable accommodation for them.
The children live with their mother in rental accommodation in (omitted), and she supports them by working part-time as a (occupation omitted). She is assisted by her mother who looks after the children when she is at work.
Mr Wytkin is essentially homeless and has not been seeing the children regularly since he lost his accommodation.

Procedural History

Ms Lilley filed an Initiating Application on 3 April 2013, in which she sought parenting orders in relation the children. Ms Lilley made an interim application for the recovery of the children from the Respondent Father’s care as he had picked them up from school on 28 March and had not returned them. I note that Easter fell between 29 March and 1 April in 2013.
The Application was abridged for an urgent hearing on 5 April 2013 before Federal Magistrate Curtain (as he then was). At that hearing on the Mother was represented by her Solicitor and the Father appeared on his own behalf. His Honour made an Order that the Father deliver the children to the Court’s Child Minding Centre and that they be released to the Mother’s care at the conclusion of the hearing.
Federal Magistrate Curtain made orders for the parties and the children to attend upon a Family Consultant for a s.11F Child Inclusive Conference on 16 May 2013. Further orders were made by consent between the parties for the children to spend time with the Father, the Father to undergo supervised drug testing, and for an injunction on the father being under influence of alcohol and/or illicit drugs whilst the children are in his care.
The parties attended upon the Family Consultant on 16 May 2013 but were unable to come to agreement.
On 7 August 2013 the matter returned to Court before Judge Curtain. His Honour made Procedural Orders by Consent for the Father and Mother to file material and an Order for the Father to pay the Mother’s costs in the sum of $500.00. The matter was then adjourned to 12 November 2014.
On 2 September 2013 the Father filed a Response and supporting Affidavit in which he sought equal shared parental responsibility, the children to live with the Mother and a regime of for the children to spend time and communicate with him.
On 12 November 2013 the matter first came before me in the Duty List. At that hearing the matter was set down for trial on 9 July 2014 with an estimated 2 day hearing. An Order was made for the preparation of a Family Report and further directions were made for the filing of trial materials.
On 9 July 2014 the Trial began with Mr Weerappah, Solicitor, representing the Applicant Mother and the Respondent Father representing himself. Interim Orders were made by Consent for the children to live with the Mother and spend time with the Father on Sundays between 10.00am and 5.00pm. The final determination of the proceedings was then reserved on 10 July 2014. The mother, the father and the family consultant, Mr T, all gave evidence and were cross-examined.

Issues and Evidence

A.Should parental responsibility for the children be shared between the parents or should Ms Lilley bear that responsibility alone?

Ms Lilley seeks an order that she be solely responsible for making major decisions about the children’s lives in the areas of education, health and religion. She proposes that responsibility for decisions about where the children live and whether they should keep their current surnames should be shared between the parties.
Mr Wytkin seeks an order that the parents share responsibility for all major decisions in relation to the children.
The law in relation to parental responsibility for children
Section 61DA (1) of the Family Law Act 1975 (Cth) (“the Act”) states that when making a parenting order, the court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for that child.
Pursuant to s.61DA(2) that presumption does not apply if the court has reasonable grounds to believe that a parent has engaged in abuse of the child or in family violence.
Section 61DA(3) states that the presumption may be rebutted if the court finds that it is not in a child’s best interests for the presumption to apply.
In this case, there are no allegations of physical abuse made against either parent, whether in relation to each other or against either of the children.

However, Ms Lilley alleges emotional abuse by Mr Wytkin in the form of drug and alcohol abuse, a patchy employment history meaning that she received little financial support, and an insistence that he was always right.
In her Affidavit sworn 11 July 2013, she describes Mr Wytkin as “extremely bombastic and controlling in his attitude”.
While emotional abuse is a form of family violence under the Act, Ms Lilley’s allegations do not, in my view, reach the threshold where they would satisfy me that there are reasonable grounds to believe that Mr Wytkin has engaged in family violence which would be enough to render the application of the presumption null.
I therefore find that the presumption of equal shared parental responsibility applies in this case.
The question then becomes whether evidence has been adduced to rebut the presumption on the grounds that it is not in the children’s best interests for their parents to share parental responsibility for them.
The factors the court is required to take into account in deciding what is in a child’s best interests are discussed in some detail later in these reasons, but I have considered those factors in relation to this question as well as in relation to the question of how much time the children should spend with their father.
It is not disputed between the parties that there is little trust between them and that their communication is extremely poor.
The reality is that in every child’s life points are reached at which decisions must be made. For instance, by the time a child is six years old he or she must go to school and therefore a decision must be made about where the child is to be educated. At various times in a child’s life decisions must be made in relation to health issues, such as whether a child is to have surgery, or whether he or she is to have orthodontic treatment.
For parents to jointly make such decisions requires them to be able to communicate with each other and to have some trust in each other’s opinion. Where neither of those things is in existence, a requirement that they make such decisions jointly can lead to stalemate. That cannot be in any child’s best interests.
In this case I find that because of the lack of communication and trust between the parties, and taking into account the matters set out in s.60CC of the Act, it is not in the best interests of the children for their parents to have equal shared parental responsibility for them in the major areas of their lives which need certainty of decision. I will therefore make an order that the mother have sole parental responsibility for the children in the areas of education and health, with all other areas being equally shared.
That does not mean that the father should have no input into those decisions and I will make orders that allow for consultation between the parties on issues of education and health, but with the mother having the final say.

B.Does Mr Wytkin have a drinking problem which interferes with his ability to take care of the children?

It is not in dispute that Mr Wytkin has had a historical problem with alcohol. He has been convicted for drink-driving at least twice and is currently without his driving licence as a result of an incident in April or May 2013 where he was found to be driving with more than twice the prescribed concentration of alcohol in his blood.
It is Ms Lilley’s evidence that Mr Wytkin’s drinking was a major issue in their relationship and a major contributor to its breakdown. She says in her trial affidavit[1]:
The father is an alcoholic and chronic marijuana consumer and has indicated to me that he suffers from bipolar. He is not medically compliant in relation to his bipolar diagnosis.
[1] The affidavit of the mother sworn 23 May 2014 and filed 26 May 2014.
In an email sent to Ms Lilley on 5 September 2010, that email being attached to Ms Lilley’s trial affidavit, Mr Wytkin says the following:
My alcohol and cannabis use was out of control and I was so pig-headed and self-centred looking back now I don’t know why you didn’t leave me earlier than you did. Since I have dried out and no longer drink or smoke cannabis anymore I have come to realise just how much of a selfish, self-centred, un-caring person I had been, even after you left I still didn’t have the balls to admit to myself that the problem was ME & with what had transpired was due to my behaviour over the years prior to our relationship breakdown (sic). I have only just realised that for me I need to address the stresses and problems in my past, and life present (sic) without using alcohol or drugs. I have accepted that for me alcohol is not the solution to my problems and has helped to cause so much unhappiness and hurt to so many people in my life, usually the ones that I love the most.
Clearly he understands the effect that his drinking had on his family. In the same email Mr Wytkin informed Ms Lilley that he was taking medication and that he was also having ongoing counselling and psychiatric help.
Nevertheless, it would appear that Mr Wytkin has had several relapses since September 2010.
For instance, the mother says that she did not allow the children to spend time with the father in October 2012 as a protective action because the father “is a chronic alcoholic and marijuana smoker and appeared before me for changeover about that time extremely drunk and stoned on drugs.”
The father’s drink-driving conviction in November 2013 also indicates that he was still (or again) drinking in mid-2013.
It is the mother’s evidence in her trial affidavit that the children had indicated to her that they were happy to spend time with the father as long as he did not drink while they were in his care. She also stated at trial that the children could identify “every (omitted) bottle shop” on the (omitted) as they had been with their father when he had stopped there to buy alcohol. If that is even metaphorically true then it appears to indicate that Mr Wytkin struggles with maintaining his sobriety.
There is no doubt that if Mr Wytkin were to drink to excess immediately before or while the children are in his care then his capacity to care for them would be seriously compromised.
For his part, Mr Wytkin says, in the only affidavit he filed during these proceedings[2], that while he had been a “binge drinker” during his twenties and had consumed marijuana during that time, he was not “constantly drunk” or a “chronic consumer of marijuana” during his relationship with Ms Lilley.
[2] The affidavit of father sworn 1 September 2013 and filed 2 September 2013.
He said that he had registered for counselling with a drug and alcohol service known as (omitted)[3] and that he had used that organisation’s services with a positive outcome in 2010.
[3] “(omitted) Drug and Alcohol Program”
He denies currently consuming any illicit drugs. He has provided supervised drug screens during these proceedings which show that he had used cannabis in the past and that he was taking benzodiazepines on prescription from his general practitioner. Otherwise his screens have been clear.
In his outline of case document filed 7 July 2014 the father says the following:
The father has been using the services of (omitted) since August 2013. He uses this time to discuss with the social worker how to deal and develop strategies to cope with the distress and stress these accusations have caused. The father has had regular phone contact with the social worker for the past seven months. Due to funding cuts to this program they have been unable to provide face-to-face contact since the start of 2014. The father has since obtained funding through the Medicare mental health plan scheme for six appointments, this being with Mr P, psychologist at (omitted) Psychology, (omitted). The father’s next appointment is on 15 July 2014.[4]
[4] I note that the father tendered at trial a copy of the referral from his general practitioner to Mr P dated 25 June 2014.
At trial, Ms Lilley’s evidence was that there had been several times that she had picked the children up from Mr Wytkin’s care after separation when Mr Wytkin had been “obviously under the influence of excessive alcohol consumption”. However she conceded that she had no objective proof as to that allegation and that she had made no notification to the Department of Human Services about any potential risk to the children in Mr Wytkin’s care.
When Mr Wytkin asked Ms Lilley in cross-examination how she had come to the view that Mr Wytkin had been visibly intoxicated at changeover, she said the following:
I came by that assumption, Your Honour, because I witnessed it with my own eyes. I work in (omitted). I can tell what intoxicated people look like.
However, she further conceded under cross-examination that she had no psychology or psychiatry qualifications as part of her (omitted) qualifications or experience, and that she had not contacted the police in October 2012 when she alleges Mr Wytkin attended changeover in an intoxicated state.
The mother was very sceptical at trial about the father attending (omitted) as she said she had seen no documentation or proof of any kind from (omitted) to suggest that he had actually been there.
The father then produced a letter on the letterhead of (omitted) Health, the organisation which auspices (omitted), which confirms that as at the date of writing, November 7, 2013, Mr Wytkin had attended four counselling appointments with a drug and alcohol counsellor and another was scheduled. The letter, which was prepared for Mr Wytkin’s drink-driving proceedings in November 2013, states that Mr Wytkin had ceased taking illicit substances and that he had reduced his alcohol intake to 15 standard drinks per week.
That letter further says:
Mr Wytkin is using his counselling sessions to:
·to establish an alcohol reduction program
·develop strategies to manage the effects of childhood trauma
·develop strategies to reduce symptoms of anxiety and depression
·establish a support network that includes professionals and supportive friends
develop relapse prevention strategies.
Mr Wytkin’s stated goals are to:
·continue his alcohol reduction program to achieve and maintain abstinence from alcohol
·increase hours of access with his children.
I note that that letter was not attached to an affidavit sworn by the counsellor, and therefore has less weight than if it had been, but I have no reason to believe that it is not a genuine letter from Mr Wytkin’s counsellor.
Even if I were to give that letter considerable weight it discloses only that Mr Wytkin had reduced his alcohol intake to a little over two standard drinks per day at that time, and not that he had ceased drinking altogether.
In summary, Ms Lilley’s evidence on this issue was that she believed Mr Wytkin was still using marijuana, benzodiazepines and excessive amounts of alcohol in late 2013 because he had produced drug screens which showed benzodiazepines and on one occasion, cannabis traces, in the first six months or so of 2013, he had been caught drink-driving in April or May 2013 and she had seen him intoxicated at changeover in October 2012.
Mr Wytkin’s evidence of a change in his alcohol consumption consists of his word on his oath, a letter from his counsellor in November 2013 and a referral to a psychologist a matter of weeks before trial. I note that in the referral letter, tendered during trial, his general practitioner states the presenting problem as “Anxiety and depression” and makes no mention of alcohol issues. In addition, the referral states (clearly erroneously given the father’s own evidence) that there is no past history of the presenting problem recorded and that the only medication prescribed for Mr Wytkin at that time (25 June 2014) was Metronidazole Gel.
Mr Wytkin provides no current reports or letters from treating practitioners in relation to his alcohol consumption.
In his Family Report,[5] Mr T describes Mr Wytkin as having “no smell of alcohol (stale or fresh) on his person at any time during the day”. Nevertheless, Mr Wytkin told Mr T that he had “fallen off the wagon a couple of times”, the last occasion being in March 2014.
[5] Family Report of Mr T dated 3 June 2014
Mr Wytkin, who represented himself at trial, certainly did not present as being under the influence of alcohol at any time. His speech was clear, his questions cogent, and his demeanour entirely appropriate and respectful.
On the basis of that evidence, I can only find that Mr Wytkin has a history of alcohol abuse, that he has sought help for that issue in the past and that as such, in the absence of any current reports or definitive documentary evidence of current abstinence, and particularly in light of his admission to Mr T that he had been drinking as late as March 2014, he remains at risk of relapse and therefore of his parenting capacity being compromised.
That said, his presentation before Mr T and at trial could be said to lend credence to his assertions that he was not drinking alcohol at that time.
I will therefore make orders that protect the children as much as possible from any relapse he might suffer, including a restraint on him drinking in the 24 hours before or during any time the children spend with him, and an allowance for time to be suspended should he attend at changeover in an alcohol-affected state. I will make an order that the mother be permitted to require him to undergo a breathalyser test on the spot to determine whether he has been drinking at the beginning and/or conclusion of his time with the children if she suspects that he is so affected.

C.When, how often and for how long should the children spend time with their father?

The law in relation to these matters is found in Part VII of the Act.
Section 60B sets out the objects of this Part and the principles underlying it and I will set out the relevant sections of those objects and principles for the benefit of the parties:
Section 60B(1): The objects of this part 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 and 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.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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 married or have never lived together; and
(b) children have a right to spend time on a regular basis with and communicating the bank 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 the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act makes clear that when a court is making parenting orders, the best interests of the children are to be its paramount consideration.
The factors that the court must take into consideration when deciding whether it is in a child’s best interest to make any particular parenting order are set out in s.60CC of the Act and I will address each of these factors in turn.
Section 60CC(2) sets out the primary considerations to be taken into account. They 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.
The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518.
In that case, Her Honour said, at paragraph 26:
… a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between X and Y and Mr Wytkin can be said to be important, significant, healthy, worthwhile, advantageous and valuable to them, and one which provides them with a positive example in self-discipline, it can be said to be a meaningful relationship in terms of s.60CC(2)(a).
The Family Report of Mr T was released on 19 June 2014 and Mr T gave evidence at trial.
Mr T reports the mother to have said that the children love their father “because he’s their dad” and that they wish to spend time with him. She told Mr T that on occasion she has agreed to extra time being spent between the children and Mr Wytkin.
X spoke positively to Mr T about his relationship with his father, describing enjoyable activities shared with him, but became “more cautious in his responses when asked if he had ever seen his father drink alcohol”. He was happy for the previous fortnightly time to continue with overnight time recommencing when Mr Wytkin found new and appropriate accommodation.
Y described his father and his wishes for future time with him in similar terms.
Mr T’s observations of the children with Mr Wytkin were as follows:
No concerns of any kind were identified during this session. The children clearly enjoyed this observation session, and there was clearly a high level of comfort and ease in their interaction. There was no evidence of strain or awkwardness in the way they related together and the boys did not compete for their father’s attention. Mr Wytkin did not favour one child over the other, but was observed to be equally attendant to both boys.
X and Y both hugged and kissed their father prior to his departure from the activities room.
A similarly relaxed and comfortable relationship was observed between the children and their mother.
In the evaluation section of the report Mr M says the following:
This assessment has revealed that X and Y both enjoy a happy and loving relationship with each of their parents. No concerns were identified during the observation session with either parent, and the children expressed a clear and unambiguous view that they want to maintain a relationship with their father, and spend time with him in each alternate weekend once he obtains his own independent accommodation. It is noted that Y indicated a desire that the alternate weekends be extended to include Sunday night (i.e. three consecutive nights).
It would seem then, that both X and Y see their relationship with both parents as being meaningful in the terms set out by Brown J in Mazorski & Albright.

However, by his own admission and from the evidence of Ms Lilley, Mr Wytkin may at times have failed to provide a positive example to the children in relation to self-discipline as described by Cronin J in Tait & Dinsmore.
It will be very important for Mr Wytkin’s future relationship with his sons that he remains sober and that he provides the role model for them that he clearly wishes to provide.
The need to protect a child from psychological or physical harm from being subjected to, or exposed to, abuse, neglect or family violence is, of course, vital to a child’s best interests.
Ms Lilley alleges that Mr Wytkin engaged in verbal and emotional abuse of her during the relationship and after separation to the extent where she applied for intervention orders against him in 2009 and 2013. It is her evidence that Mr Wytkin withheld financial support from her and the children both during and after the relationship, and that his behaviour is often belligerent and unreasonable.
In the email quoted at paragraph 44 above, written in 2010, Mr Wytkin acknowledges the truth of those allegations, although in his affidavit material and at trial, he expressed his frustration at what he saw as Ms Lilley’s attempts to restrict his relationship with his sons.
I experienced the not-so-reasonable side of Mr Wytkin at the interim hearing of these proceedings on 12 November 2013. He arrived at court late and his demeanour could only be described as cocky, arrogant and disrespectful. If that has been his demeanour in dealing with the mother of his children, then it is no surprise that she sees him as somewhat of a bully.
I note however that when his previous appearance at court was mentioned to Mr Wytkin at trial, he apologised for his behaviour on that day. I also note that on 12 November 2013, Mr Wytkin was to face the Magistrates Court in relation to his drink-driving charge only a week or so later. While that might have explained his behaviour on that day, it does not excuse it.
At trial I found him to be a man of some insight and self-reflection, who understands fully the need to protect X and Y from any conflict between their parents. It is to be hoped that he continues to explore the less savoury parts of his character in counselling so that he might find strategies to avoid their expression. Only then might Ms Lilley be confident that both she and the children are safe.
Section 60CC(3) then sets out a further 14 factors for the court to consider. Those factors are:
(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.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) 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.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(3)(a): Both children, while still young at ten and eight, have expressed the view that they wish to maintain and develop their relationship with their father, and the court notes those views and will make orders to provide for that relationship to continue.
Section 60CC(3)(b): The nature of the relationships between the children and their parents is discussed in paragraphs 72 to 80 above and I note that the Family Consultant observed positive relationships with both parents.
Section 60CC(3)(c):The evidence before the court is that both during and for about two years after the relationship, both parents were responsible for making decisions about the children, and that both took care of them in an essentially shared care arrangement.
In later days, the mother has taken every opportunity to make decisions about the children’s lives, some of them, like the decision to change their school, without consulting the father.
The father has been less consistent, but has essentially done what he can to ensure that the relationships are maintained. He is frustrated that the mother has made some major decisions about the children’s schooling without reference to him.
Section 60CC(3)(ca):Financial support for the children is a major point of contention between the parties and has been since before separation. The evidence before the court is that the mother has had the major burden of the children’s financial support and the father has acknowledged that he has been less than supportive in the past.
The father alleges that he made cash payments to the mother post-separation for the children’s expenses but the mother’s evidence was that while there were some sporadic payments after separation, she has received no child support for the past five years.
There was an arrangement made through the Child Support Agency for private collection of child support, Ms Lilley says upon a threat from Mr Wytkin that he would not pay child support by any other means, but her clear evidence is that he has in fact not paid for the children’s support since late 2009.
In any event, it does not appear that Mr Wytkin has paid consistent child support in accordance with a Child Support Agency assessment for some years.
At the time of trial, Mr Wytkin had no income and so was not in a position to pay child support, but he should understand that child support is every child’s right and every parent’s responsibility at law. When he is working he has an obligation to provide financial support for his children.
Section 60CC(3)(d): As the parents currently live relatively close to each other and there is no suggestion that there be no time spent between father and sons, there is little likelihood of major impact from any changes made in the children’s circumstances. They will not be separated from either parent for long periods.
Section 60CC(3)(e): The fact that the father has no access to income other than by way of employment means that any expense he incurs in spending time with the children will be more onerous than for other non-resident parents. It affects the practicality of his being able to spend that time and indeed, has already done so as he has had to forego overnight time with the children since he lost his accommodation in March or April 2014.
Until he is able to secure appropriate accommodation that practicality will inevitably affect the quantity, and to some extent the quality of time the children are able to spend with him.
Section 60CC(3)(f): Currently, only the mother is able to provide for the children’s material needs as she is the only parent with access to an income. The father has had to curtail his time with the children because of his inability to meet their need for accommodation. However, when he is working and has an income there is no evidence before the court to say that he lacks capacity to care for them in the material sense.
Both parents are intelligent people who are able to take care of the children’s intellectual needs.
There is no evidence that the mother is unable to meet the children’s emotional needs, but what I have already said about the father’s vulnerability to alcohol abuse would certainly affect his ability to do so should he not continue to abstain from alcohol.
Section 60CC(3)(g): The children appear to be appropriately developing young boys of some resilience. There is nothing in their background which would have an impact on any orders I might make save that they have a half-brother (and presumably other paternal relatives) in (country omitted) with whom they will have no chance of contact should their relationship with their father break down completely.
Section 60CC(3)(h): The mother says that the children have no Aboriginal heritage, but the father claims that they have some (omitted) and Aboriginal heritage on his side through his great-grandmother who, he claimed at trial, was a member of the Stolen Generations.
Ms Lilley’s evidence at trial was that she had spoken to Mr Wytkin’s mother who had denied any documented evidence of such a background.
In any event, there is no evidence before the court that Mr Wytkin himself has ever identified as Aboriginal or Torres Strait Islander, or practised that culture, or that he has sought to pass any traditions on to the children. Therefore I do not see this factor as being of any great significance in this case.
Section 60CC(3)(i): Clearly both parents love these two boys very much.
Their mother has demonstrated her attitude to them by her care of them throughout their lives, and she has tried, as far as has been commensurate with their safety, to ensure that they have a relationship with their father. The decision to change their school without reference to him however, does not display a particularly sensitive understanding of her parental responsibilities.
The father’s attitude to them has always been loving and appropriate, but he has been hampered by his history of alcohol abuse and the conflict it has caused in his relationship with both the children and their mother.
He wants to be a good parent, but has apparently been unable to commit to consistent child support payments, and if the mother is correct in saying that the children have been exposed to his alcohol abuse, then that does not reflect well on his attitude to his parental responsibilities as demonstrated in the past.
Section 60CC(3)(j): There is no suggestion that either party has been abusive to either of the children either before or after separation.
However, as mentioned in the context of s.61DA above, the mother alleges that the father was emotionally abusive to her both during and after separation. While I have found that that emotional abuse was not enough to rebut the presumption of equal shared parental responsibility, I do take it into consideration when deciding what is in the children’s best interests in the context of the time they should spend with their father.
Emotional abuse taking the form of dismissive or controlling behaviour can have serious effects on both the object of that abuse and any children who are witness to it. It can have detrimental effects on a person’s or a child’s self-esteem which can have long-lasting consequences for that person or child’s emotional development.
Emotional abuse can take many forms, and includes in my view the undermining of a parent’s role in relation to their children. That is what the father alleges against the mother, and the damage from such abuse can also be very serious to a parent’s or child’s self-esteem.
It is therefore vital that when parents separate they are able to distinguish between their feelings of grief and anger over the loss of the relationship and their commitment to and responsibility for parenting their children into the future.
Section 60CC(3)(k): there is no current family violence order place between these parties.
The mother obtained an Intervention Order against the father in 2010 and it was her evidence at trial that there had been no breaches of that order for the 12 months of its duration.
Section 60CC(3)(l): it was the father’s evidence at trial that he will ultimately seek equal shared care of the children. He says that that was the situation that pertained up to 2010 and that it has always been his wish and intention to equally share the care of his sons.
Clearly it is not possible for him to do so at this time in circumstances where he finds himself without secure accommodation, without employment, and unable to obtain Centrelink benefits.
The court can only make orders on the basis of the evidence that is put before it and the evidence at this time is that only day contact between father and sons is appropriate.
However, I will make orders which account for circumstances in the future where the father is able to provide appropriate accommodation for the children, so that he will not need to return to court at that time.
Whether he pursues his wish for equal shared care of the children at some future time is a matter for him.
Section 60CC(3)(m): There is no other fact or circumstance that the court thinks is relevant.

Conclusion

When all of the above matters are taken into account, I find that it is in the children’s best interests in this case for them to maintain and develop their relationship with their father as far as is possible having regard to their needs and safety.
I will therefore make orders that allow that relationship to continue and to develop into the future should Mr Wytkin be able to provide appropriate accommodation for them.
It is to be hoped that once these proceedings are concluded, both parents will be able to focus on the children and their needs and ensure that those needs are placed before their own.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 28 October 2014

[2014] FCCA 2461

28 October 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies