Maddox and Nemet

[2019] FCCA 1078

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDOX & NEMET [2019] FCCA 1078

Catchwords:
FAMILY LAW – Parenting – whether parents who cannot communicate ought to have equal shared parental responsibility for their almost 15-year-old daughter – how much time the girl should spend with her father in circumstances where the parents neither like nor trust each other.

Legislation:

Family Law Act 1975, ss.4AB, 60CC, 61C, 61DA, 64B, 65DAA.

Applicant Husband: MR MADDOX

Respondent Wife: MS NEMET

File Number: MLC 12626 of 2017

Judgment of: Judge Small

Hearing date: 17 April 2019

Date of Last Submission: 17 April 2019

Delivered at: Melbourne

Delivered on: 18 April 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the Respondent: In person

Solicitors for the Respondent: None

ORDERS

(1)All previous parenting orders in relation to the child [X] born 2004 (“the child”) are hereby discharged.

(2)The mother shall have sole parental responsibility for the child.

(3)Before making any major decision about `the child’s name, medical treatment, education or religious practice in the exercise of her sole parental responsibility for the child, the mother shall inform the father in writing of her intention to do so, and the father shall respond to that information, in writing only, within 7 days, whereupon the mother shall consider the father’s views and inform him of her decision within 7 days of the decision being made.

(4)The child shall live with the mother.

(5)The child shall spend time and communicate with the father as follows:

(a)During school terms:

(i)     Each alternate weekend from the conclusion of school on Thursday, or 5:00 p.m. if Thursday is not a school day, to the commencement of school on Monday, or Tuesday if Monday is not a school day, commencing on Thursday 25 April 2019;

(ii)    Each alternate week from the conclusion of school  on Thursday, or 5:00 p.m. if Thursday is not a school day, to the commencement of school on Friday, or 5:00 p.m. if Friday is not a school day commencing on 3 May 2019;

(b)During school term holidays by agreement between the parties and failing agreement:

(i)     From 10:00 a.m. on the middle Sunday to the commencement of the next school term in even numbered years; and

(ii)    From the conclusion of school on the last day of term to 10:00 a.m. on the middle Sunday in odd numbered years;

(c)For half of the long summer holidays each year by agreement between the parties and failing agreement:

(i)     For the first half commencing at 6:00 p.m. on the last day of the school year and concluding at 6:00 p.m. on the middle day in even numbered years; and

(ii)    For the second half commencing at 6:00 p.m. on the middle day and concluding at 6:00 p.m. on the Friday before the commencement of the next school year in odd numbered years;

(d)From 9:00 a.m. on Fathers’ Day to the commencement of school on the following day each year;

(e)From 6:00 p.m. on Christmas Eve to 12 noon on Christmas Day in even numbered years and from 12 noon on Christmas Day to 6:00 p.m. on Boxing Day in odd numbered years;

(f)On the father’s birthday from 9:00 a.m. to 8:00 p.m. if it falls on a non-school day and from the conclusion of school on the father’s birthday to the commencement of school (or 9:00 a.m. if not a school day) the following day;

(g)From the conclusion of school on the child’s birthday (or 4:00 p.m. if not a school day) to the commencement of school the following day (or 9:00 a.m. if not a school day) in odd numbered years and from the conclusion of school on the day before the child’s birthday (or 4:00 p.m. if not a school day) to the commencement of school the following day (or 9:00 a.m. if not a school day) in even numbered years;

(h)At other times by agreement between the parties in writing, including text messages.

(6)The child shall be permitted to communicate with each parent via telephone, FaceTime, Skype or other electronic means at all reasonable times and each party shall facilitate such communication between the child and the other parent and afford the child privacy during such communication.

(7)All time the father spends with the child pursuant to paragraphs 5(a) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.

(8)Except where changeover takes place at the child’s school or music lesson, the father shall collect the child at the commencement of his time with her and the mother shall collect the child at the conclusion, and changeover shall take place at the Location C in Town B Shopping Centre or otherwise as agreed between the parties in writing at least 48 hours prior to the changeover.

(9)The father’s time with the child shall suspend, if necessary, on the following occasions:

(a)From 9:00 a.m. on Mothers’ Day to the commencement of school on the following day each year;

(b)From 6:00 p.m. on Christmas Eve to 12 noon on Christmas Day in odd numbered years and from 12 noon on Christmas Day to 6:00 p.m. on Boxing Day in even numbered years;

(c)On the mother’s birthday from 9:00 a.m. to 8:00 p.m. if it falls on a non-school day and from the conclusion of school if it falls on a school day, to the commencement of school (or 9:00 a.m. if not a school day) the following day;

(d)From the conclusion of school on the day before the child’s birthday (or 4:00 p.m. if not a school day) to the commencement of school the following day (or 9:00 a.m. if not a school day) in odd numbered years and from the conclusion of school on the child’s birthday (or 4:00 p.m. if not a school day) to the commencement of school the following day (or 9:00 a.m. if not a school day) in even numbered years; and

(e)At other times by agreement between the parties in writing, including text messages.

(10)Neither party shall make any arrangements or appointments for the child while she is in the other parent’s care without the written consent of the other parent first having been obtained in writing.

(11)The mother shall ensure that the child’s school makes available to the father, at his cost if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the father shall be at liberty to attend parent-teacher interviews and all sporting or cultural events usually attended by parents provided that he does not approach the mother without her express consent having first been obtained in writing.

(12)The parties, by themselves, their servants or agents, are hereby restrained by injunction from passing messages to each other through the child, whether written or verbal.

(13)Whenever a party communicates with the other party in writing, other than communications specified in paragraph (3) hereof, that other party shall respond within 48 hours of receipt of that communication.

(14)The parties shall each inform the other as soon as practicable of any serious illness or injury suffered by the child which requires hospitalisation or specialist treatment while she is in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the child to speak to the other parent about the child’s treatment.

(15)The parties and their servants and agents be and are hereby restrained by injunction from:

(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from permitting any other person to do so;

(b)discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in her living circumstances to her) and from permitting any other person to do so; and

(c)allowing the child to access, read, or have read to her, any portion of the Court’s Reasons for Judgment in this matter.

(16)The Family Law Watchlist Order made 5 December 2017 in relation to the child is hereby extended to 17 July 2022.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12626 of 2017

MR MADDOX

Applicant Husband

And

MS NEMET

Respondent Wife

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings between Mr Maddox (“the father” or “Mr Maddox”) and Ms Nemet (“the mother” or “Ms Nemet”).

2.The parties are in dispute about the living arrangements for their daughter [X] born 2004 (“[X]”), who is now approaching her 15^th birthday. They are agreed, however, that [X] should live with her mother for most of the time.

3.The issues for decision in this case are:

A.Whether the parties should equally share parental responsibility for [X] or whether that responsibility should rest with Ms Nemet alone;

B.How much time and in what configuration [X] should spend with her father; and

C.Whether to extend the current Airport Watch List Order to [X]’s 18^th birthday.

Background

4.The father is almost 60 years old having been born [in] 1959.

5.He lives on his own in a two-bedroomed unit in Location D, and is in receipt of Centrelink benefits as he has numerous injuries and medical conditions which prevent him from working.

6.The mother is 58 years old and was born [in] 1960.

7.She currently works as a customer service assistant and has just purchased a 3 bedroomed unit in Location E.

8.The parties met in Country F in 2000 and Ms Nemet migrated to Australia on a prospective spouse visa in September 2002. They were married in Melbourne [in] 2002.

9.They separated in July 2017 after a family violence incident which resulted in an Intervention Order being made against the father, and that order lasted until 19 March 2019. As far as the court is aware, the parties are not yet divorced.

10.[X] is the only child of the marriage. She lives with her mother and spends time with her father pursuant to interim orders made by consent on 14 May 2018.

Procedural History

11.The proceedings began on 4 December 2017 when Mr Maddox filed an Initiating Application seeking parenting and property orders, a sworn Financial Statement and an Affidavit in support.

12.The matter first came before me in the Duty List on 5 December 2017 as the father’s Initiating Application seeking an Airport Watch List Order for [X] had been abridged.

13.I made that Order on 5 December 2017, as well as orders for a part property settlement and for the mother to file responding material by 20 February 2018. The matter was then adjourned to the Duty List on 15 March 2018.

14.Ms Nemet filed a Response, a sworn Financial Statement and Affidavit in support on 14 March 2018.

15.On 15 March 2018, further interim parenting and property orders were made by consent and the parties were ordered to attend a Conciliation Conference with a Registrar on 26 April 2018. The matter was otherwise adjourned to the Duty List on 14 May 2018 for Directions.

16.The property proceedings settled by consent at the Conciliation Conference on 26 April 2018 with Final Property Orders being made by Registrar Hubble.

17.On 14 May 2018, further interim parenting orders were made by consent and the matter was listed for Final Hearing on 11 April 2019 for two days, with Trial Directions being issued and an order made for the preparation of a Family Report.

18.Until that point in the proceedings, both parties had been represented by solicitors, but by the time they and [X] presented to Family Consultant Ms G (“Ms G”) for interview for the Family Report, both were self-represented.

19.Ms G’s Family Report was released on 12 March 2019. She was not required to give evidence at trial.

20.The Final Hearing was later administratively adjourned to 17 April 2019 and it ran for one day, with both parties being self-represented and both giving their evidence through interpreters: a Language H interpreter for Mr Maddox and a Language F interpreter for Ms Nemet.

21.Given those circumstances, I conducted the final hearing in a more informal manner than usual, swearing the parties and their respective interpreters in at the beginning of the day and allowing the parties to give their evidence from the bar table.

22.At the end of the day, I adjourned the matter to the next day for the making of Orders, explaining to the parties that I would provide written Reasons for Judgment as soon as possible after that.

23.I made Final Orders on 18 April 2019 and these are my Reasons for Judgment.

The Evidence

24.The evidence of the parties is found in their initial Affidavit material, in the information they gave to Ms G, and in their oral evidence at trial. I note that neither party filed any further Affidavit material for trial.

25.It is the mother’s evidence that she was a victim of family violence perpetrated upon her by Mr Maddox throughout their marriage, that violence being mostly verbal abuse, but with some physical abuse as well. She describes him screaming at her during arguments and her living in fear of his temper.

26.Mr Maddox, to his great credit, admits that he yelled at the mother during the relationship and that he did, on occasion, assault her.

27.That violence has led to an almost total breakdown in any trust that might once have existed between the parties. Each has multiple grievances against the other arising from the relationship, its breakdown, their property settlement, and, on the mother’s part, about the father’s capacity to ensure that [X] completes homework and is attentive to her studies while she is with him.

28.I note that at separation in July 2017, the police obtained an Intervention Order against Mr Maddox, that Order naming both the mother and [X] as Affected Family Members.

29.That Intervention Order expired on 19 March 2019.

30.It is clear from both parties’ evidence that [X] was present when at least some of the family violence incidents occurred. I note in this context that exposing a child to family violence is an act of child abuse in itself under s4AB of the Family Law Act 1975 (“the Act”).

31.Nevertheless, based on the evidence of Ms G, [X] is an intelligent and resilient young woman who loves both her parents dearly and wishes to live with her mother while spending significant time with her father.

32.She told Ms G that she loves her father, that he allows her to have friends stay for sleepovers while she is spending time with him, and that he sleeps downstairs during those times while [X] and her friends have the use of both upstairs bedrooms. That information was confirmed by the father at trial.

33.He also pays for her weekly music lessons, despite being in receipt of Centrelink benefits and paying the minimum amount of child support pursuant a Child Support Assessment.

34.The evidence of both parents is that they each miss [X] greatly when she is with the other parent, with Mr Maddox saying that he sometimes becomes a little depressed when she is not with him. He does, however, have the support of his family, and in particular his sister, who sometimes assists him not only with translating documents but is a sounding board for him in times of difficulty.

35.Both parties acknowledge that they pass messages through [X] and both acknowledged at trial that this was not a constructive way to parent her.

36.Ms G is concerned that the parents’ reliance on [X] for their emotional wellbeing might be a burden for her, but she is pessimistic about the possibility of any change occurring in that context.

37.It is the recommendation of Ms G that [X] spend alternate weekends with her father from the conclusion of school on Thursday to the commencement of school on Monday, and that consideration be given to adding another night in the “off week”.

38.Because of the animosity and mistrust between the parties, Ms G recommends that the parent with whom [X] lives most of the time – that is, the mother – ought be have sole parental responsibility for major decisions about her life.

39.At trial, it was my impression that Mr Maddox understood that recommendation, and that his major concern was that Ms Nemet did not inform him of such matters, rather than that he was not involved in the decisions. For instance, he says he had no say in the school [X] attends, but he did not appear to have any concerns about her present school, and he is in regular and frequent touch with the school principal to ensure that [X] is progressing well.

40.It was his evidence that he ensures that [X] completes her homework when she is at his home and that he asks her about school and her progress.

41.The mother is most concerned that [X] focus on her studies as her education progresses so that she has the greatest opportunities available when that study ceases. Ms Nemet has organised and pays for extra tuition for [X] in English and Maths which she attends each Tuesday after school.

42.The mother appeared to take for granted that [X] would go to university, and there is little evidence to counter that expectation.

43.Ms G says that [X]’s school reports are positive and she had no concerns about her intellectual development.

The law

44.The law in relation to parenting in family law matters is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). All the Orders I am asked to make in this case are parenting Orders.[1]

[1] See s64B of the Act.

Issue A.       Whether the parties should equally share parental responsibility for [X] or whether that responsibility should rest with Ms Nemet alone

45.The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Act, and more particularly in ss.61C and 61DA.

46.Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.

47.In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the Court.

48.Section 61DA states as follows:

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

49.Subsection 4 of s.61DA states that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

50.In this case, much of Ms Nemet’s evidence about the family violence she suffered during the marriage is corroborated by Mr Maddox. 

51.He was particularly candid in his interview with Ms G and I am therefore satisfied that “a parent of the child has engaged in family violence”.

52.In those circumstances the presumption in s.61DA does not apply.

53.The next question I must answer is whether it is [X]’s best interests for her parents to share parental responsibility for her equally.

54.Ms G’s report recommends that Ms Nemet have sole parental responsibility for [X] because of the inability of the parties to communicate positively about major decisions, and the fact that [X] lives primarily with her.

55.During trial, whenever an issue was discussed, each parent took a negative stand against the other, and it was clear to me that they are simply not capable of relating other than antagonistically. Both impressed as having emotional issues arising from their relationship which neither of them has been able to fully address.

56.Ms G states that both parties would benefit from counselling, although she was not confident that they would attend, even if ordered to do so.

57.Whenever a Court is asked to make a parenting order, it is obliged to take the child’s best interests as its “paramount consideration”.[2]

[2] See s.60CA of the Act

58.S.60CC(2) and (3) of the Act set out 16 factors that the court must consider when deciding what orders to make in a child’s best interests.

59.The Court’s task includes weighing the “primary considerations” of the benefit to a child of having a meaningful relationship with both parents against the need to protect a child from harm as a result of abuse, neglect, or being exposed to family violence. When engaging in that process, s60CC(2A) requires me to place greater emphasis on protecting the child from harm.

60.In this case, there is great benefit to [X] in having a meaningful relationship with bother her parents. Both parents love her dearly, and, in addition, each stated at trial that they knew that the other also loved her and was concerned to give her the best possible opportunities in life.

61.Ms G’s observation of each party with [X] confirmed close and relaxed relationships with both, although Ms G describes [X] as being “less forthcoming” with her mother than with her father.

62.The only real risk to [X]’s safety lies in her being exposed to and/or involved in further conflict between her parents. Both parents acknowledged at trial that [X] was “caught in the middle” of their fractured relationship and that that situation was not good for her.

63.We do not know what [X]’s views are in relation to the question of parental responsibility and I do not consider any of the matters set out in s.60CC(3) to be particularly relevant in this context, although I have considered all of those matters, and will elaborate on that issue when discussing what kind of time [X] should spend with each parent.

Decision: Issue A

64.When I consider the evidence of the parties, which shows an inability to communicate in order to properly consult about major decisions to be made in relation to [X]’s welfare, and when I consider the evidence and recommendations of Ms G, I find that it is not in [X]’s best interests for her parents to have equal shared parental responsibility for her.

65.I will therefore make an order for Ms Nemet, as the parent with whom [X] lives, to have sole parental responsibility.

66.However, I will also make an order that before she makes any major decisions about [X]’s life, she must ask for Mr Maddox’s input, and consider that input. That can all be done in writing between the parties, without any direct involvement of [X], although, as she matures further, her wishes will no doubt be taken into account as well.

Issue B.      How much time and in what configuration [X] should spend with her father

67.It is Ms Nemet’s case that during school terms [X] should spend alternate weekends with Mr Maddox from the conclusion of school on Friday to the commencement of school on Monday, or Tuesday if Monday is a public holiday. That is, that [X] generally live with her for eleven nights a fortnight and with Mr Maddox for three nights.

68.She says that [X] needs to concentrate on her studies at this time in her educational life and that she fears that [X] will be unable to do so without a strict regime that has her attending to homework every night.

69.It was her evidence that Mr Maddox could have involvement in [X]’s school life when he collects her from school on alternate Fridays and delivers her to school on alternate Mondays.

70.She also seeks orders in the terms of the interim orders of 14 May 2018 in relation to school holidays and special occasions such as Christmas and birthdays. The parties were agreed at trial that, in general, those orders ought to be made final.

71.Mr Maddox wants orders that provide for [X] to spend each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday if Monday is a public holiday, as well as an order for her to spend every other Thursday night with him. That is, that [X] generally live with her mother for nine nights every fortnight and with him for five nights.

72.He says that Ms Nemet has no basis for her concern that he will not prioritise [X]’s education, and that he does ensure that she does her homework when she is with him.

73.I note that when asked, [X] told Ms G that she wanted to decide for herself how much time she spends with her father.

74.Ms G’s recommendation is that [X] spend from the conclusion of school on Thursday to the commencement of school on Monday with her father on each alternate weekend, and that “consideration be given” to her spending an extra night with him in the “off week”.

75.She says that [X] “would likely benefit from being provided with the opportunity to spend more time with her father”, despite [X]’s stated wish to decide for herself, and that while “she should be actively included in decisions that affect her, she still needs support and guidance from her parents”.

76.Ms G then says, at paragraph 70 of her report:

It is unlikely that the situation for [X] is going to change significantly as the pattern of [X] parenting her parents was likely established well before this matter presented to the Court.  What is needed, is for [X] to have meaningful time with each of her parents that is structured and adhered to by both parents and [X].[3]

[3] Emphasis added.

77.Ms Nemet presents as a highly protective parent to [X], despite it having been her wish that [X] should decide on her living arrangements.

78.As [X] moves further into adolescence (she turns 15 in July), she is almost certain to want more autonomy in her life, and that may be difficult for her mother to accept.

79.Nevertheless, the reality is that [X] will seek to make her own decisions about her life as her adolescence progresses, and Ms Nemet will need to step back and provide a more supportive parental role rather than relying on [X] to fulfil her emotional needs.

80.The same might be said of Mr Maddox.  He sees [X] as his friend, one whom he loves dearly, and who provides him with emotional support.

81.He too will need to step into a more parental role as [X] grows older and matures, so that [X] can develop in her own way and time, but in the secure knowledge that both parents are there to support her and provide guidance for her.

Decision: Issue B

82.I have considered all of the matters set out in s.60CC(3) of the Act, in particular the wishes of the child, the nature of the relationship between the child and her parents, the capacity of the parents to provide for the child’s needs, the attitude of the parents to the child and to their responsibilities as parents, and the need to make orders which are most unlikely to lead to further proceedings.

83.When I consider all those issues, I find that it is in [X]’s best interests to spend substantial and significant time with her father[4], and I will therefore make orders that she spend time with him during school terms on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday if Monday is a non-school day.

[4] See the definition of “substantial and significant time” in s.65DAA of the Act.

84.I will also make an order that [X] spend the Thursday night with Mr Maddox in the “off week”.

85.Other orders will be as the parties have agreed, with [X] spending time with Mr Maddox for half of all school holiday periods and on special occasions.

86.In that way, [X] will have a clear regime of time with her father, while having her mother’s home as her base. She will spend every Thursday night with her father, and in each alternate week that time will extend to Monday morning (or Tuesday if Monday is a holiday).

Issue C: Whether to extend the current Airport Watch List Order to [X]’s 18th birthday

87.When Mr Maddox filed his initiating application on 4 December 2017, he included, in the interim orders sought, an order that [X]’s name be placed on the Family Law Watch List so as to prevent her from leaving Australia.

88.The application for that order only was abridged, and at a hearing on 5 December 2017, at which both parties were present, the order sought by Mr Maddox was made by consent, that order to last for two years, that is until 5 December 2019.

89.Mr Maddox now seeks to have that Watch List order extended to [X]’s 18^th birthday, that is until 2022.  I note that all Watch List orders in relation to children automatically expire on the child’s 18^th birthday.

90.Mr Maddox says that he is afraid that Ms Nemet, who is a dual Australian/Country F citizen, might take [X] overseas and not return her, in which case his relationship with his daughter would simply be destroyed.

91.Ms Nemet says that she is settled in Australia, that she owns property here, that she has employment in Melbourne, and that she has no intention of living anywhere but Melbourne. 

92.When asked at trial, she said that [X]’s Australian passport had expired, and that she did not believe that [X] would be eligible for a Country F passport.

93.In those circumstances, she says, there is no need for an extension of the Watch List order.

Decision: Issue C

94.In circumstances where there is no trust at all between the parties, and where Mr Maddox derives no comfort at all from Ms Nemet’s evidence in relation to this matter, I find it appropriate, in order that there be certainty in [X]’s life, to extend the current Watch List order until [X]’s 18^th birthday [in] 2022.

95.That does not mean that [X] cannot travel overseas before that date.  It simply means that if one party wishes to travel overseas with her while she is still a minor, that party will have to make an application to the court for the Watch List order to be lifted for the period of the travel.

96.If the other party agrees, orders can be made by consent to allow [X] to travel overseas for a specific period.

97.If the other party does not agree, then the court will make a decision based on the application of the travelling party.

Conclusion

98.This matter involves high conflict between the parties based on historical family violence and the fact that neither of them is fluent in their only common language of English.

99.This has led to miscommunication, extremely high levels of mistrust, and to the parties relying on their daughter to carry messages between them, thus placing her in the middle of the conflict.

100.Both parties acknowledge that it is not in [X]’s best interests to be placed in that position, and it is hoped that they will comply with these orders so that [X] has certainty in her life and that she is not any further exposed to the conflict between her parents. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 29 April 2019