Lonsdale and Lonsdale - [2008] FMCAfam 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LONSDALE & LONSDALE

[2008] FMCAfam 194

FAMILY LAW – Parenting orders – exercise of one aspect of parental responsibility – injunction sought by the mother requiring the child to be supervised by another adult person when he spends time with the father at his place of employment.

Family Law Act 1975, ss.60CA, 60CC, 61DA and 65DAA

Applicant:

MR LONSDALE

Respondent:

MS LONSDALE

File number:

ADC 3877 of 2007

Judgment of:

Lindsay FM

Hearing dates:

13 & 14 February 2008

Date of last submission:

14 February 2008

Delivered at:

Adelaide

Delivered on:

14 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr D. Whittle

Solicitors for the Applicant:

Cardone & Associates

Counsel for the Respondent:

Ms T. Lewis

Solicitors for the Respondent:

GSN Legal

Counsel for the Independent Children’s Lawyer:

Mr M. Boehm

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission

ORDERS

By consent, there be orders in terms of the draft Minute of Order this day signed by me.
The father be restrained and an injunction be granted restraining him, until the child B born in 2002 attains the age of ten (10) years, from taking the child with him to the G Wildlife Park during any period in which he is engaged in employment in the said Park SAVE AND EXCEPT if the child is accompanied by and under the supervision of another adult person, which person is not in the employment of the

G Wildlife Park.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3877 of 2007

MR LONSDALE

Applicant

And

MS LONSDALE

Respondent

REASONS FOR JUDGMENT

This has been a hearing that is related to the exercise of one aspect of parental responsibility in relation to the child B born in 2002 who is a child of the age of about five and a half years; in particular, whether the Court should make orders by way of injunction that regulate the father’s time with the child in a specific way.
Ultimately the injunction as sought by the mother, as I apprehended it, changed in form as the trial progressed, until at the end, the mother’s application was this: that there should be an injunction that requires the father to have the child supervised by another adult person, should he be in attendance at his place of employment for the purposes of employment, with the child, during any period in which the orders I am asked to make by consent provide for him to exercise time spent with the child.
It is important to understand firstly, what the mother’s application is not. It is not, as perhaps the papers might have suggested before we embarked upon the hearing, an application that requires the father to be personally present and personally supervise the child during all periods that he exercises time spent - that is, that requires the father to absent himself from work. It is not an application that requires the father not to work during the period that he exercises time spent with the child. Ultimately, in the form in which it has been promoted, it is an application for an order that requires the presence of another suitable adult person to supervise the child should father and child be at the place of employment during any period when the father is engaged in employment.
Similarly, I think it is important at the outset to understand what the father’s application is not. As he ultimately conducted his application, it was to be able to have the opportunity to have the child attend with him at his place of employment whilst he worked but only on one occasion per four-week period. It would be a Saturday and it would be, as I understood the evidence as it unfolded, for a period of about four hours.
It is important to note those aspects of each of the applications of the parties. As they embarked upon the trial the parties’ applications already, and inherently, included significant accommodations of the reasonable expectations of the other party: the mother accommodating the father’s need to work on weekend time; the father accommodating to some extent the mother’s concerns that he not have the child with him whilst he was employed.
It is important to note those matters at the start but, even so, it is also significant that over this relatively narrow area of dispute the parties have, each of them, chosen to engage in a trial that has gone over two days but ordinarily would have lasted something approaching one day.
We note the accommodation each of the parties has made in respect of the reasonable expectations of the other parent but we note it with concern, in that having narrowed the dispute to such a discrete area yet still the parties are still prepared to engage in the level of disputation that their positions have taken them to.
At the end of the evidence the Court has an apprehension that it has really been, as much as anything, in this hearing, a playing-out of the parties’ antipathies and grievances against the other. The particular occasion for the contest has been this issue of what happens for a period of four hours once per four-week period, as to which adults will or will not be present.
The impression the Court takes from the documents and from having heard the evidence of the parties is that it could just as well have been another issue that the parties joined issue on. As it was, it was this particular issue; in other words, what was important was that, before the parties signed off on consent orders, there was a contest between them - a joining of their wills, as it were - to see who would prevail.
For the purposes of determining this dispute I have relied upon the affidavit material that has been filed by the parties; principally their trial affidavits, although the evidence has taken me to the consideration of affidavits filed by them at an earlier time. I have heard the oral evidence of the father and of the mother, and I also heard some oral evidence from the father’s employer, a Ms M.
I was assisted by the submissions that all counsel made but, in a dispute of this nature, I was particularly assisted by the Counsel for the Independent Children’s Lawyer. Oftentimes the appointment of an independent children’s lawyer is made for the very circumstances that arose in this case. There has been a family assessment but ultimately the opinion of the assessor was not germane to the resolution of the dispute as it played out before me.
Nevertheless, the value of having the counsel appear, to put submissions that are independent of the interests or positions of either of the parents involved in the dispute, provides a valuable perspective and it has been useful in this case. Given the independence of that perspective it is important that the submissions of Counsel for the Independent Children’s Lawyer, in a case such as this, are given significant weight and I have done so.
I do not propose, given the narrow area of the dispute, to set out in any detail the history of disputation between the parties other than to note that, from about 2005 to about April of 2007, a practice developed, once the father had returned to his employment with the G Wildlife Park, of the child accompanying him, at some stage on a Saturday, to his place of employment and remaining with him whilst he attended to his tasks at that employment on his Saturday shift.
It is a significant aspect of the evidence, in my view, that no application with respect to this particular issue was brought by the mother during that period. This dispute, that provides the explanation for the trial process having to occur, is a dispute that the mother could have sought to litigate or regulate at a much earlier stage of the proceedings.
I think it is a fair summary of all of the factual material before me to say that she has elected to promote this controversy and have this dispute resolved in the context of coming to Court, firstly in response, strictly speaking, to the application of the father, but coming to Court really for the purposes of sorting out other more fundamental matters associated with the exercise of parental responsibility.
In particular, the affidavit material tells us about a serious level of disputation between the parties which culminated in some somewhat bizarre events in April of 2007, when the father and strangers were involved in some sort of physical altercation in the presence of the mother.
We know also, and there was no contest about this from the father, that for a period of time he repeatedly engaged in hydroponic cultivation of Indian hemp and that he only ceased to do so after the mother reported him to the authorities.
Apart from those matters the other significant issue - principal issue really - that was addressed in the affidavit material filed by the parties and addressed at the interlocutory stages of the proceedings has been the mother’s contentions with respect to the behavioural problems that have been attendant upon, or which follow upon, the child spending time with the father. I do not propose to go into any detail about those but they are, in themselves, detailed complaints about the extent to which the child’s behaviour is impacted upon by his experiences with his father during periods of time spent.
These are proceedings pursuant to Part VII of the Family Law Act1975 (the ‘Act’). As I say, the proceedings relate to a particular aspect of the exercise of parental responsibility, and, as I think Mr Whittle who appeared on behalf of the father quite properly pointed out, what is being sought to be regulated in this case is an aspect of parental responsibility which really goes unmediated in a great majority of matters that come before the Court. Parents operate upon the basis of expectations that when a child is living with or spending time with a parent that certain standards of adequate and attentive parenting will be met.
Notwithstanding the narrow focus of the dispute, the child’s best interests remain my paramount consideration. I am still making a parenting order. The provisions of s.60CA of the Act continue to prevail. Section 61DA, of course, is the section which deals with the question of allocation of parental responsibility and the presumption of equal shared parental responsibility. The orders I have been asked to make by the parties already provide, by consent, for parental responsibility to be shared; so no occasion for the exercise of the presumption arises.
Theoretically s.65DAA of the Act continues to apply, notwithstanding the consent of the parties and notionally I am obliged, because I am making an order for equal shared parental responsibility, to go ahead and consider questions of equal time and substantial and significant time. This case here, where there are comprehensive consent orders, is a perfect example of where there is simply no utility in such an exercise being carried out, given that the matters are the subject of consent orders. This dispute will not be resolved by the application of ss.61DA and 65DAA.
I heard evidence from the father with respect to his performance of his duties at the G Wildlife Park. He gave detailed evidence as to the events that would ordinarily occur during the course of the child accompanying him to his place of employment on a Saturday. He indicated at the outset, and the orders provide, that he will ensure that on one of his two weekends with the child each four-week period he will be absent from employment.
The attendance of the child with him is not a matter that arises incidentally; it is something that he actively promotes. Really, at the heart of his evidence was the contention that this was a significant enjoyment of the child. In particular, the child enjoyed being able to be present and observe or spectate upon his father carrying out his tasks at the wildlife park and in particular the child enjoyed, and got pleasure from, watching his father feed the animals during that particular period of time.
He gave detailed evidence as to how he performs his tasks, including the feeding of the carnivores at the wildlife park. He described the circumstances in which he goes into the alligator pen. He described how the child spectates when he goes into both that enclosed area and other enclosed areas, most of the other dangerous animals having what might be loosely described as safety-door arrangements.
Altogether, his evidence was that he exercised an appropriately stringent supervision and observation of his child during all such periods. It was his position that the mother was overstating, to a marked degree, the reality of the risks presented to the child during the course of such an attendance. His case was that the mother was being both hypocritical and hypercritical in respect of the possible dangers that would arise during the course of the child’s attendance with him on such occasions.
Overall I was favourably impressed with the evidence of the father in relation to the issue of safety. There is no doubt at all that he has a great love for his child and that he would, to the maximum extent possible, provide the child with a safe and secure environment and do whatever was required to keep the child safe and secure in such an environment.
Having said that, and whilst acknowledging his obvious worth to his employer and his experience in the field in which he works, I agree with Ms Lewis, who appeared on behalf of the mother, that there was an element of complacency about the way in which he approached his tasks. Notwithstanding that - and I accept his evidence that his employer has created appropriate standards of safety for both employees and visitors to the park - it is an inherently dangerous job that he undertakes, dealing with animals of this nature. There was, I thought, an element of complacency associated with his evaluation of the sorts of risks that were presented by specific tasks he carried out in the presence of the child.
In many respects I was less impressed with the mother’s evidence. She was not impressive, I thought, in terms of explaining her position or how it was that she had come to this evaluation of the risks presented by the father taking the child to his employment on these particular occasions. Her evidence at times was dogmatic; it was somewhat evasive.
For example, her affidavit was simply wrong in assigning quite specific dates as being dates upon which the temperature reached 37 degrees. It will be recalled that that was a matter that was promoted in her affidavit as an example of occasions on which the father was less than attentive to the needs of the child, in taking him to his place of employment on such occasions. She was simply wrong about those dates.
My concern about her evidence in that regard was fortified by what I regarded as her inadequate, unconvincing explanation as to a missing diary accounting for her insistence that those three specific dates were the dates upon which either bad weather in terms of rain, or oppressive weather in terms of heat, presented a risk to the child.
I thought her evidence was prone to overstatement, especially as it related to what she had to say about the level of the child’s fear or apprehension in relation to his attendances at the park and indeed what she said in her affidavit material and in her evidence was the child’s desire not to go to the park.
I do not propose to set out in these reasons any specific aspects of her affidavit material, but it is quite clear that she promotes the view that the child goes along with the father on these occasions very much against his will, from the mother’s point of view. There did not seem to be any insight by the mother into the possibility that the child was in fact feeding her anxiety by telling her what he - that is, the child - might think she would receive favourably in terms of an account by the child of his having certain views about attending with his father in these circumstances, when in fact the child did not hold such views but thought the mother would be pleased to be told that he did.
At the end of the evidence the problem for the mother, with respect to the level of apprehension or anxiety she brought to an evaluation of these issues, is that I just did not think it was realistic to ask the Court to accept that the father would put the child through these experiences if he - that is, the father - genuinely thought the child was not enjoying the experience. It seemed to me that fundamental to the position the father put was the father’s own view, genuinely held, that this particular experience was of benefit to the child because he enjoyed it.
It is important to bear in mind, in evaluating the mother’s evidence, the significant background of the father’s cultivation of Indian hemp. It provides a context, a very meaningful context, for her apprehensions as to the extent to which the father does prioritise the welfare of the child and does act in ways that are appropriate in terms of creating an environment where the child is not at risk. It would be natural to expect that her experience of the father’s persistence in that sort of behaviour, even though he had responsibility for the care of a young child, was an event, or a series of events, that explained to some extent the formation of her hyper‑vigilant views in relation to these matters.
Section 60CC of the Act prescribes the sorts of matters that must be taken into account when I determine what is in B’s best interests. It contains a series of what are described as additional considerations, and two primary considerations.
So finely calibrated is this dispute, by the end of the evidence, that it is really difficult to bring to bear any particular aspects of these primary or additional considerations in the resolution of the dispute. For example, whether or not the father has the opportunity of taking the child with him to his place of employment while he works, his time with the child, pursuant to the orders that are made by consent, will still be meaningful. So one of those primary considerations will still be addressed. The other primary consideration, the need to protect the child from physical or psychological harm, is really just a restatement of the factual dispute that is at the heart of the resolution of this issue.
The hearing really comes down to an evaluation of the evidence of the parties and then the Court’s own assessment of the risk presented by the specific occasion on which time spent is sought to be exercised at the father’s place of employment.
Ultimately I have decided to make the order sought by the mother and I have done that in spite of rather than because of her evidence. I have already summarised, I hope, or drawn attention to those aspects of the mother’s evidence that I thought unsatisfactory but, leaving the mother’s own evaluation of the risks presented by the occasions we are examining, leaving that to one side for the reasons I have indicated - and I have indicated why I thought her perspective on the matter was unreliable or might have been subject to distortion - the Court nevertheless has to make its own evaluation of the evidence, to see whether or not the proposal promoted by the father is in the child’s best interests.
Critical to my determination of that evidence have been the following factors: firstly, the child’s age - he is only five years of age. We are told he is a somewhat shy and retiring child. I do not think that is particularly significant, but the child is very young to be experiencing, on a regular basis, or being present at the sorts of activities that were disclosed in the evidence.
Then too, as I have already indicated, the father’s vocation is one that is inherently potentially dangerous. It is not dangerous because he does not bring to bear appropriate skills and elements of precaution but it is dangerous because animals can escape. There are risks presented to his own safety in the carrying out of his duties. There are, we are told - and I should indicate that I relied on all aspects of the evidence given by the father’s employer - significant crowds that are in attendance on occasions, during the course of the father’s performance of his duties, and there is some level of risk associated with the other activities that we are told the child involves himself in during the course of his attendance at the wildlife park while his father is working.

I should indicate - and the sorts of matters I am talking about there are his riding on the tractor or riding on a bicycle - I accept the father’s evidence and not the mother’s evidence about the magnitude of the risk presented by those specific activities, but it is just another albeit subsidiary matter that goes into the mixture with the inherently dangerous nature of the employment and the age of the child in causing me to form the view I have: that the order promoted by the mother, not for the reasons promoted by the mother, is one that is in the best interests of the child.
Most importantly, I think it is an order that should be made because of the easy availability of other options; in other words, again I accepted the evidence of the father’s employer that she would, as she expected to do, make arrangements to accommodate the father not working on the two weekends during the four-weekly cycle when he is exercising time spent with the child. Then again it seems to me a matter that is relatively easily capable of fulfilment: for the father to take, for example, his mother or his girlfriend with him, for a period of four hours, on one Saturday during the course of a four-week period.
Ultimately I am acceding to the mother’s application because by the end of the trial her application had retreated into an application that was of such modest form.
There should be an age at which the strictures which arise from the order I am proposing to make cease to be applicable, and there is an arbitrariness, I acknowledge, about the selection of a particular age. It seems to me, on the evidence, that the age of 10 is probably one at which the risks will be so minimalised as to be negligible.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 7 March 2008