Lindsay and Piper - [2019] FCCA 358

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDSAY & PIPER

[2019] FCCA 358

Catchwords:
FAMILY LAW – Parenting – Two year power struggle over parenting arrangements for three young children – orders made for the children to live with the mother and spend time with the father culminating in four nights per fortnight – poor parental relationship and children with some health needs – mother to have sole parental responsibility for decisions about the children’s health and the parties otherwise to share parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:

Mazorski & Albright (2008) 37FamLR 518
Gravis & Major [2010] FamCAFC 239

Applicant:

MS LINDSAY

Respondent:

MR PIPER

File Number:

NCC 35 of 2017

Judgment of:

Judge Terry

Hearing dates:

26 July, 12 October & 5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Newcastle

Delivered on:

16 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Hunter Family Law Centre

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

Burke & Mead Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Gorton

Solicitors for the Independent Children’s Lawyer:

Todd Street Lawyer

ORDERS

The children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 (“the children”) shall live with the mother.
The mother shall have the sole parental responsibility for decisions concerning the children’s health.
The mother and the father shall otherwise have shared parental responsibility for the children.
The children shall spend time with the father as follows:
(a)During School Terms
(i)Commencing on 18 January 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Saturday.
(ii)Commencing on 15 March 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Sunday.
(iii)Commencing on Tuesday 29 January 2019 and each alternate Tuesday thereafter from 9.00am or the commencement of school until 5.00pm.
(iv)Commencing in 2021 each alternate weekend from 5.00pm or the conclusion of school on Friday until 9.00am or the commencement of school on Monday.
(v)Commencing in 2021 each alternate Tuesday from 5.00pm or the conclusion of school until 9.00am or the commencement of school on Wednesday.
(b)During School Holiday Periods
(i)2019
(i)In the Term 1 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Thursday.
(ii)In the Term 2 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Friday.
(iii)In the Term 3 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Saturday.
(ii)2020
(i)In the Term 1 and 2 school holiday periods from 5.00pm on the first Monday until 5.00pm on the following Saturday.
(ii)From Term 3 and continuing for each of the Term 1, 2 and 3 school holiday periods thereafter from 3.30pm or the conclusion of school on the last day of school term until 5.00pm on the following Saturday.
(c)During Christmas School Holiday Periods
(i)2019/2020
(i)From 5.00pm on Monday 30 December 2019 until 5.00pm on Friday 3 January 2020;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lindsay and Piper

Details

AGLC: Lindsay and Piper [2019] FCCA 358
Case: [2019] FCCA 358
Decision Date: 16 January 2019

CaseChat Overview and Summary

This case concerned parenting orders for three children, [X], [Y], and [Z], born in 2013, 2015, and 2017 respectively. The dispute between the parents, Lindsay and Piper, involved significant disagreements regarding the children's living arrangements, parental responsibility, and time spent with each parent. The matter was heard by Judge Terry.

The court was required to determine several key legal issues. These included the appropriate living arrangements for the children, the allocation of parental responsibility, particularly concerning the children's health, and the specific time each parent would spend with the children. The court also had to consider the children's Aboriginal background, allegations of family violence between the parents, and the potential risks associated with the father's residence on the Town A Mission.

In reaching its decision, the court applied the paramount consideration of the children's best interests. It acknowledged the benefit of a meaningful relationship with both parents, noting that this was not a case where no time orders were appropriate. The court addressed the mother's concerns about the Town A Mission, finding that while she perceived it as a place of disadvantage and potential exposure to negative influences, she did not provide sufficient evidence to establish that the children would be at risk of harm there. The court also considered the allegations of family violence, noting that both parties had perpetrated violence, but concluded it was not a determinative factor in this instance. The court ultimately made orders for the children to live with the mother, with the mother having sole parental responsibility for health decisions and shared parental responsibility for other matters.

The court made detailed orders regarding the children's time with the father, including specific arrangements for school terms, school holidays, and Christmas periods, with provisions for alternating years. Further orders addressed communication between parents and children, prohibited denigration of a parent in the children's presence, and restricted contact with certain individuals. The court also ordered that the children's surname be changed to Lindsay-Piper, authorising the mother to apply for the necessary registration.

Orders

Orders of the court

The children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 (“the children”) shall live with the mother.

The mother shall have the sole parental responsibility for decisions concerning the children’s health.

The mother and the father shall otherwise have shared parental responsibility for the children.

The children shall spend time with the father as follows:

(a) During School Terms

(i) Commencing on 18 January 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Saturday.

(ii) Commencing on 15 March 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Sunday.

(iii) Commencing on Tuesday 29 January 2019 and each alternate Tuesday thereafter from 9.00am or the commencement of school until 5.00pm.

(iv) Commencing in 2021 each alternate weekend from 5.00pm or the conclusion of school on Friday until 9.00am or the commencement of school on Monday.

(v) Commencing in 2021 each alternate Tuesday from 5.00pm or the conclusion of school until 9.00am or the commencement of school on Wednesday.

(b) During School Holiday Periods

(i) 2019

(i) In the Term 1 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Thursday.

(ii) In the Term 2 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Friday.

(iii) In the Term 3 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Saturday.

(ii) 2020

(i) In the Term 1 and 2 school holiday periods from 5.00pm on the first Monday until 5.00pm on the following Saturday.

(ii) From Term 3 and continuing for each of the Term 1, 2 and 3 school holiday periods thereafter from 3.30pm or the conclusion of school on the last day of school term until 5.00pm on the following Saturday.

(i) 2019/2020

(i) From 5.00pm on Monday 30 December 2019 until 5.00pm on Friday 3 January 2020; and

(ii) From 5.00pm on Monday 13 January 2020 until 5.00pm on Friday 17 January 2020.

(ii) 2020/2021

(i) From 5.00pm on Saturday 2 January 2021 until 5.00pm on Saturday 9 January 2021.

(ii) From 5.00pm on Saturday 16 January 2021 until 5.00pm on Saturday 23 January 2021.

(iii) 2026/2027 and each alternate year thereafter (even numbered years)

(i) From the conclusion of school on the last day of Term 4 until 5.00pm on the day which is the midpoint of the school holiday period.

(iv) 2027/2028 and each alternate year thereafter (even numbered years)

(i) From 5.00pm on the day which is the midpoint of the holiday period until 5.00pm on the last Saturday of the holiday period prior to the commencement of the new school term.

Notwithstanding any other order the children shall spend time with the father:

(a) Christmas Period

(i) In even numbered years from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) In odd numbered years from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

(b) Father’s Day Weekend

(i) From 5.00pm on Saturday until 5.00pm on Sunday.

(i) From 5.00pm on the day prior to the father’s birthday until 5.00pm on the day of his birthday.

Notwithstanding any other order the children shall spend time with the mother:

(a) Christmas Period

(i) In odd numbered years from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) In even numbered years from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

(b) Mother’s Day Weekend

(i) From 5.00pm on Saturday until 5.00pm on Sunday.

(i) From 5.00pm on the day prior to the mother’s birthday until 5.00pm on the day of her birthday.

For the purpose of implementing these orders, unless otherwise agreed between the parties:

(a) The father or his nominee will collect the children from the mother or her nominee at the BP Service Station at Town A at the commencement of the children spending time with the father;

(b) The father or his nominee will return the children to the mother or her nominee at the BP Service Station at Town A at the conclusion of the children spending time with the father.

Both parents may communicate with the children at all reasonable times whilst the children are in the care of the other parent and, for this purpose:

(a) Communication will be implemented by the parent who is not caring for the children at that time telephoning a number or otherwise initiating electronic communication with a source to be provided by the other parent, such telephone number or sources to be provided to the first-mentioned parent in writing within 7 days from the date of these orders.

(b) The other parent will make the children available for such telephone or other electronic communication and will afford the children privacy for the duration of any such telephone call or other electronic communication.

Both parents are restrained by injunction from:

(a) Denigrating the other party within the presence or hearing of the children and from permitting any other person to do so.

(b) Allowing the children to come into contact or remain in contact with:

(i) Mr B.

(ii) Mr C.

(iii) Any person under the influence of illicit substances.

10.

Each party is at liberty to attend significant school and extra-curricular events for the children that each parent would ordinarily be expected to attend including, but not limited to, award presentations, performances, sporting games, competitions and parent teacher interviews.

11.

Each party is to notify the other as soon as is practicable on the happening of any of the following of the children:

(a) Any serious medical problems or serious illnesses suffered by the children whilst in their care.

(b) The children being hospitalised.

(d) Any social, school or religious functions which the children are to attend.

(e) Being involved in an accident or emergency warranting hospitalisation.

12.

Each party will provide the other with an operable telephone number and their current residential address for all periods when the children are in their care, and advise the other parent in writing of any changes within 7 days of the relevant change.

13.

For all purposes the children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 shall be known henceforth as, [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper.

14.

The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 to [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper.

15.

The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 14 above is to do all acts and things to register the change of names of [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 to [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

Background

Background to the litigation

I must consider the children’s maturity, sex and background. [X] has mild asthma and she has a heart murmur which does not seem to be causing her any particular problems at the moment. A greater concern though, and I will come back to it the parental responsibility section, is that [Y] has had some problems. She has been referred to speech therapy and also to a psychologist. The issue of the proper management of the children’s health concerns me because the father at some point disputed the asthma diagnosis. He said it was a self-diagnosis by the mother. I have no reason to believe the mother is making poor decisions about the children’s health and the fact that the children have some health problems and that the parents are in some dispute about them causes me some concern. The next issue I have to consider is that the children are Aboriginal children. The Act says that is very important but both the parties and all of the children’s extended family are Aboriginal and proud to be so. I do not need to ensure that the children spend more time with one parent or one family than the other to ensure that they are spending time with people who share and value their Aboriginal heritage. The father is from this area. He wants to share his culture with his children but he does not need to have a particular amount of time with them to do that. The mother also values her Aboriginal culture. The children’s Aboriginality is not a determinative factor in this case. I must consider issues of family violence. I need to go into this in a little bit of detail because although for reasons I am going to come to at the conclusion of this section I do not consider this to be a determinative factor in the case it is important to make clear how the evidence about it plays itself out. I deal with many cases in this Court in which there are allegations of family violence. Anybody who appears in front of me knows that I have no hesitation in making findings about perpetration of family violence. I have no hesitation, if the evidence supports it, in making findings that there has been coercive and controlling violence. I am sometimes forced, and I have actually had to do it twice in the last month and it makes me very sad, to make no time orders because of family violence. However I have to consider allegations of family violence in the context of each particular case and the evidence in this case suggests that both parties perpetrated family violence. The mother agreed that when [X] was little she threw a baby bottle at the father and that it missed him and struck [X]. The mother made that seem somewhat benign in her affidavit. A letter from the health centre dated 16 May 2014 suggests that it may have been a little more concerning, because the letter was prepared at a time when the mother had no reason to present herself as other than she actually was and it included the following:The mother described herself as having brain snaps and said when she did she threw things at Mr Piper and punched him and destroyed furniture. Last Saturday, she threw a baby bottle and it –Well it says “hit him on the head” but I think it actually struck the baby on the current view of the case.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I then come back to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with both of their parents. There is clearly a benefit to these children in having a meaningful relationship with both of their parents. This has never been a no time case. The children will benefit from having both of their parents involved in their lives in a significant way. The second primary consideration is the need to protect the children from harm and a central plank of the mother’s case was that the children would be at risk of harm in the father’s care because he was living on the Town A Mission. As I understand it from the evidence the Town A Mission is a group of 26 houses which is regarded as an Aboriginal community. The father is living there with the paternal grandmother and said that he intended to remain there. He said that if a house became available on the community for him he would live in his own house, but he said he had no intention of moving away; that was where he help and support was. I cannot be sure that the father will never move away. He did not live on the community when he lived with the mother. They lived in Town P and he has contemplated some greater involvement with his father who does not live on the mission, but that was what he said at trial. The mother said that she was strongly opposed to the children spending any extended time on the mission. She said as follows in her affidavit:As an aboriginal woman I am aware of the complexities of our culture and will always be respectful of the needs of the Piper family. However, it is my view that an Aboriginal mission does not reflect “Aboriginal culture” it reflects a cycle of disadvantage forced upon Aboriginal people and a generation of government dependence and ongoing social, emotional and cultural barriers.[7][7] Paragraph 12 of the mother’s affidavit.…When I was in a violent relationship with Mr Piper, I felt like it was normal because everyone I knew and spoke to at the mission were in similar situations or worse. I feel like there is a culture of silence on the mission, where people choose to forget about issues rather than face them.I worked for community organisations that assisted Aboriginal people and women in violent situations and I knew that most of the people at these organisations would help Ms F and Mr Piper before me and had seen violence on the mission and ignored it like everyone else.[8][8] Paragraphs 14 and 15 of the mother’s affidavit. It is difficult to glean from the mother’s affidavit the extent of her knowledge of life on the mission. It appears that at some points the parties spent some time there but it is very difficult to work out how much it was, because the parties mainly lived in their own houses in Town P. The mother said that from her knowledge of it the Town A Mission was not a positive place. She referred to an occasion when she went next door and saw a lady who she believed had been assaulted by her partner Mr B. She referred to the fact that a man called Mr C, who lived on the mission, had been charged with abusing his girlfriend’s daughter, and she felt that the paternal grandmother had not kept him sufficiently at bay. She expressed concern about whether the paternal grandmother would cover up things that were happening on the mission and also about the lifestyle on the mission and she expressed concern about the children being exposed to incidents such as she described and perhaps forming some view about how life should be lived.