MAGRI & GALLO
[2018] FCCA 2481
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAGRI & GALLO | [2018] FCCA 2481 |
| Catchwords: FAMILY LAW – Parenting – Where there are two children of the relationship – where it is agreed that the children live with the mother – where there is no verbal communication between the parents – where there are allegations of family violence in the father’s household – where the issue of equal shared or sole parental responsibility needs to be determined – where costs were reserved – where no order was made as to costs. |
| Legislation: Family Law Act 1975 (Cth), pt. VII, ss.60B, 60CC, 60CC(2)(a), 60CC(3)(g) & (h), 60I, 61DA, 106A, 117, 117(2), 117(2A) |
| Cases cited: Mazorski & Albright (2008) 37 FamLR 518 Hawkins & Roe (2012) 47 FamLR 526 |
| Applicant: | MS MAGRI |
| Respondent: | MR GALLO |
| File Number: | NCC 2506 of 2012 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 15, 16 and 17 August 2017 |
| Date of Last Submission: | 20 March 2018 |
| Delivered at: | Townsville |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Mullane & Lindsay |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Toronto Legal |
ORDERS
That all existing parenting orders be discharged.
That the mother have sole parental responsibility for the children [X] born 2009 and [Y] born 2011 (the children).
That prior to making a decision relating to the issue of parental responsibility, the mother shall;
(a)inform the father by email of the decision she intends to make, and seek the father’s input into the decision;
(b)consider the father’s views when making a decision;
(c)inform the father by email of the decision that she ultimately makes
Notwithstanding order 2 herein, the mother shall inform the father in the event that either of the children attend psychological therapy, and in such circumstances and prior to the child’s first attendance with the counsellor,
(a)the mother must inform the father in writing of the name, telephone number and contact address of the therapist within seven days of the child's first attendance on the therapist;
(b)the mother must provide the therapist, with authority to communicate with the father, including to obtain information as to the child's therapy and seek advice from the therapist, and a sealed copy of this order is sufficient evidence of such authority.
That the children live with the mother.
That the children spend time in the father as follows;
(a)from the conclusion of school or 3:30pm if either of the children have not attended school that day on Friday to return to school or 9:00am if the children are not attending school that day on the immediately following Monday each alternate weekend.
(b)subject to order 8 herein for one half of the school holiday period following terms one, two and three being the first half in odd numbered years, and alternating thereafter, and the second half in even numbered years and alternating thereafter;
(c)subject to order 8 herein during the Christmas holiday each year on a week about basis commencing the first week of the holidays in odd numbered years, and alternating thereafter and commencing the second week in even numbered years, and alternating thereafter;
(d)each Father's day from 9:00am on Father's Day until the commencement of school or 9:00am if the children are not attending school that day on the immediately following Monday;
(e)from 11:00am Christmas Day to 11:00am Boxing Day in 2018 and each even numbered year thereafter;
(f)from 5:00pm Christmas Eve until 11:00am Christmas Day in 2019 and each odd numbered year thereafter;
(g)at other times as agreed in writing between the parents.
That the father’s time with the children shall be suspended as follows;
(a)from 9:00am on Mother's Day to the commencement of school or 9:00am if the children are not attending school that day on the immediately following Monday;
(b)from 5:00pm Christmas Eve until 11:00am Christmas Day in 2018 and each even numbered year thereafter;
(c)from 11:00am Christmas Day until 11:00am Boxing Day in 2019 and each odd numbered year thereafter;
That the father’s holiday time with the children during any school holiday period is subject to the father not working on any of the dates that the children are in his care for the purpose of that holiday time and for clarity;
(a)this order is not intended to suspend the weekend time and
(b)the father’s unavailability for holiday time during one school holiday period shall not affect his holiday time in a different school holiday period.
For the purpose of these orders;
(a)“school term" is defined as the date set out in the New South Wales Education Standards Authority website (or any website replacing New South Wales Education Standards Authority website from time to time) as school term;
(b)“school holiday period" is defined as commencing on the last day of a school term and concluding on the first day of the following school term;
(c)“Christmas holidays" is defined as commencing on the last day of the fourth school term each year and concluding on the first day of the first school term in the following year;
(d)The alternative weekend pattern operating prior to the making of these orders shall not be altered by any other provision herein;
(e)That unless otherwise requested by the school, the mother and the maternal grandparents;
(i)shall not be present at the children’s school after 2:00pm on any day that the children go into the care of the father where changeover occurs at school; and
(ii)shall not be present at the children’s school before 9:00am on any day when the children are leaving the father’s care and changeover occurs at school, and on such occasions they shall only enter the school through the front gate, noting that the mother and the maternal grandparents regularly attend assembly, reading, canteen duties and other school functions;
(iii)and the mother will do all things reasonably necessary to ensure that the maternal grandparents do not attend in accordance with orders (9)(e)(i) and (9)(e)(ii);
To facilitate the children’s time of the father, unless otherwise agreed between the parents in writing;
(a)when the father’s time is to commence upon the child or children concluding school, the father or a nominee well known to the children shall collect the child or children from school;
(b)when the father’s time is to conclude upon the child or children commencing school, the father or nominee well known to the children shall deliver the child or children to the school;
(c)for all other changeovers, at the commencement of time, the mother or a nominee well known to the children shall deliver the children to the father or a nominee well known to the children at McDonald's family restaurant at Suburb A and at the conclusion of time, the father or nominee well known to the children shall deliver the children to the mother or nominee well under the children at McDonald's family restaurant and Suburb A.
That the parents must each ensure that any motor vehicle used for the transport of the children or either of them is fitted with appropriate and correctly installed child seats, seatbelts and restraints and that the children are seated in an age-appropriate child seat when being transported in any motor vehicle.
The children shall communicate with the parents at any reasonable time that the children request and the parent with whom the children are spending time with and living with shall facilitate the call.
That without admissions, both parents be and are hereby restrained by injunction from;
(a)consuming alcohol such they would exceed the legal driving limit in New South Wales or consuming illicit drugs while the children are in their respective care and within a period of 12 hours prior to the children coming into their care,
(b)denigrating the other parent or any member of the other parents household or extended family in the presence or within the hearing of the children, or allowing any other person to denigrate the other parent or any other member of the other parents household or extended family in the presence or within the hearing of the children;
(c)physically disciplining the children, or allowing any other person to physically discipline the children.
The father be and is hereby restrained from;
(a)disciplining the children or either of them by locking them in their bedroom or any other room;
(b)exposing the children to family violence between him and his current or any former partner.
That communication regarding the children is to be affected by the parents themselves by email or text messages (where response is required within 24 hours) between themselves, unless in the situation of an emergency.
That both parents will provide to the other notification within seven days of any change of contact telephone number, email address or residential address and the details of any new contact telephone number, email address or address and keep the other informed of any current mobile phone numbers and email address.
That each parent is to telephone the other as soon as practicable upon the happening of any of the following;
(a)the children (or either of them) becoming seriously ill; or
(b)the children (or either of them) becoming hospitalised; or
(c)the children (or either of them) being involved in an accident.
That each parent hereby consents and authorises any of the children's treating medical practitioners to provide to the other parent any medical report, reports in relation to children or either of them or answer any queries of the other parent of the children's health and a copy this order is sufficient evidence of such authority.
That each parent provide such request consents and/or authorities required by the school of the children to enable each party to receive reports, school photographs or any other notice or notices relating to the child and to permit both parents to speak to the teachers of the children concerning the school or performance of the children and a copy of these orders is sufficient evidence of such authority and may be served upon the schools.
That each parent is permitted to travel internationally with the children during any period that the children are in their care pursuant to these orders and such other time as may be agreed by the parents in writing, provided that;
(a)the parent proposing to take the children overseas (the travelling parent) must give the other parent 30 days written notice of their intention to do so, unless in circumstances of urgency/an emergency;
(b)no less than 14 days prior to the proposed date for leaving the Commonwealth of Australia the travelling parent must provide to the other parent;
(i)a copy of the return airline/shipping ticket, including details of the date departure the date of arrival and details of the flights/voyages;
(ii)an itinerary for the journey, including telephone contact numbers and addresses of the travelling parent and the children are overseas.
That the parents shall do all acts and sign all documents necessary to facilitate the travelling parent travelling overseas and returning with the children.
In the event that either parent refuses or neglects to execute any deed or instrument required to be executed by these orders within 14 days of a written request to do so, the registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument on behalf of such refusing or neglecting parent and to do all acts necessary to give validity to the operation to the deed or instrument, upon the registrar being provided with verification of such refusal or neglect by way of affidavit.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Magri & Gallo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
NCC 2506 of 2012
| MS MAGRI |
Applicant
And
| MR GALLO |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting application concerning two children, [X] born 2009 and [Y] born 2011.
The applicant mother was aged 39, at the time of the trial and the respondent father was aged 38, the time of the trial.
The parties commenced cohabitation in 2008 and separated on 6 March 2011, prior to the birth of [Y].
Final orders were made by consent, in the Federal Circuit Court of Australia on 14 March 2013.
Material
The mother relied upon the following:
a. amended minute of orders sought, attached to the case outline;
b. affidavit of Ms Magri filed 10 October 2016;
c. affidavit of Ms Magri filed 17 March 2017;
d. affidavit of Ms Magri filed 21 July 2017;
e. the affidavit of Ms V filed 12 October 2016;
f. affidavit of Ms V filed 17 March 2017;
g. affidavit of Ms S filed 10 October 2016;
h. affidavit of Ms T filed in court on 2 June 2015;
i. the mother’s case outline
The mother also relied upon:
a. family report prepared by Mr N dated 9 February 2016;
b. child inclusive memorandum prepared by Ms D dated 16 July 2015;
c. family report by Dr T dated 3 August 2017.
The father relied upon following material:
a. amended response filed 9 September 2016;
b. affidavits of the father filed 24 July 2017, 5 October 2016, 12 April 2017;
c. affidavit of Ms A filed 12 April 2017, and 14 August 2017;
d. an aide memoire, proof of evidence, dated 17 August 2017 of the father;
e. father’s minute of order, Exhibit 14;
f. the father’s case outline, Exhibit 1
Issues
At the commencement of the trial I asked Counsel to set out the issues I was being asked to determine.
It was not in contest that the children should live with their mother. Counsel for the respondent conceded this point at the commencement of the trial.
The issues for determination were;
a. whether weekend time should commence Friday after school and conclude Monday before school or Friday after school until 5:00pm Sunday;
b. whether there should be mid-week time spent with the father;
c. when do the weekends start again after holidays;
d. whether the father’s household had been chaotic for a number of years;
e. whether communication has impacted upon parenting arrangements;
f. whether there should be an order for sole parental responsibility or equal shared parental responsibility;
g. whether the mother will facilitate and promote a relationship between the children and the father;
h. whether there should be telephone time between the children and their parents during holidays;
i. whether holiday time should be limited to a time when the father is available and on holidays.
The Orders Sought
The mother sought orders in accordance with the minute of proposed orders attached to the mother’s case outline.
In summary the mother sought an order for sole parental responsibility, that the children live with her, that the children spend time with the father each alternative weekend from conclusion of school Friday until 5:00pm Sunday, that the children spend holiday time with the father for one week in each of the school holiday periods provided the father is not working.
The mother also sought special times in accordance with her minute of proposed orders and further ancillary orders.
The father sought orders pursuant to the father’s minute of order, Exhibit 14.
That minute of order sought an order that the parents have equal shared parental responsibility, the children live with the mother, the children spend time with the father from after school on Friday until 9:00am the following Monday extending to Tuesday if Monday was a long weekend, for one half of all school holiday periods.
The father sought orders relating to special time and further ancillary orders as set out in the father’s minute of order.
Curiously, notwithstanding an order made by me at the close of the trial that written submissions were to be filed by 4:00pm on 22 September 2017, the father’s written submissions were not filed until 20 March 2018.
Even more curious was that annexure A to the submissions, orders sought by the father, sought an order that the children spend time with the father during school terms each alternate weekend from the conclusion of school Thursday until the commencement of school on Tuesday.
At the conclusion of the hearing, the issues to be determined were once again identified including that the competing proposals for the children’s time with their father during school terms was each alternate weekend on the mother’s case Friday to Sunday and on the father’s case Friday to Monday.
There is absolutely no explanation as to why the orders sought by the father in his extremely late written submissions is different to the orders sought at the conclusion of the trial.
Summary of the Evidence
At the time of trial the children were living with their mother and spending time with their father each alternate weekend from Friday until Monday.
The children were also spending time with their father during school holidays, pursuant to an interim order made by consent, on 13 April 2017 for one week in each of the New South Wales school holiday periods following terms one, two and three and a further week during the Christmas school holiday period, provided that;
“the fathers time with the children during any school holiday periods, is subject to the father not working on the dates the children are in his care.”
The children were also spending time with each parent on special occasions.
The children subject to these proceedings had also been introduced with and/or lived with other children.
The father has two children to a relationship with Ms J, that relationship ended between September and December 2015. Those children are [A] born 2014 and [B] born 2015.
Ms J has two children of a previous relationship, who also lived in the household with her and the father and the children and those children are, [C] born 2003 and [D] born 2015 (the Ms J children).
Prior to the father commencing a relationship with Ms J, I am satisfied that whilst parenting arrangements were far from perfect, the parents were able to organise time with the children between them without court proceedings. Prior to the relationship with Ms J, the parents had agreed upon a change of name for [Y] so as that she had the same surname as [X].
In 2012 when [X] was approximately two, nearly three and [Y] was in her first year the father commenced a relationship with Ms J.
Both the mother and father now agree that Ms J is and was a person with significant mental health difficulties however they may be described.
The father conceded that Ms J once occupying the home took on the primary role in parenting and homemaking in that household.
It is clear that upon Ms J commencing a relationship with the father and cohabitating with him, communication between the mother and father deteriorated rapidly.
At the time of the relationship with Ms J, Ms J was in litigation with Mr H relating to the Ms J children. Those proceedings commenced in 2014 but the evidence establishes that the dispute between Ms J and Mr H ran from 2012 until 2017.
In February 2013 Ms J alleged and indeed made a complaint to police that she had been assaulted in the home whilst on the toilet, having been stabbed in the back with a broken bottle.[1]
[1] Second family report paragraph 36
The father believed that allegation at least at the time.
I am satisfied that at the time Consent Orders were made on 14 March 2013 for the subject children to live with the mother and spend time with the father the mother would have had no real ability to fully understand or indeed perhaps understand at all, the nature of the relationship between the father and Ms J and what was occurring in their household as the father refused to communicate with the mother.
In March 2013, Ms J attended the police and alleged an assault of her children by their father. Later that day Mr Gallo attended the police station as he was unable to find Ms J. She was subsequently found unconscious in her car not far from the police station and alleged that someone had forced her to eat cake with codeine in it.
Perhaps not surprisingly, the police believed the allegation to be fictitious and an Ambulance took Ms J to Psychiatric Emergency Centre at Region 1 Hospital.[2]
[2] Second family report paragraph 38
In June 2013 Ms J was sending emails to the mother which quite frankly were uninvited and the mother found to be harassing.
In July 2013 [X] complained to her mother that “Ms J stabbed me” and the mother noticed a mark on the child’s stomach.
The father admitted that during the relationship with Ms J, he was growing and using cannabis and that Ms J was also using cannabis.
The Family Consultant notes that in 2013 there were allegations of sexual abuse to [X], those investigations were investigated by JIRT with no substantiation occurring.[3]
[3] Second family report paragraph 19
In June 2014 [X] had been referred to Psychology One for psychological assistance. On 29 July 2014, [X]’s psychologist, Ms R made a report to facts due to concerns about [X] and [Y]’s psychological welfare. The Family Consultant under cross-examination when asked about this said “from what I can recall from the notes the father is not particularly interested in it.”
The evidence establishes that the mother had considerable concerns about Ms J and what was occurring in the house of the father by this time. On 21 August 2014, a section 60I certificate issued in circumstances where the father failed or refused to attend mediation.
In September 2014, [X] threatened to kill herself, the Family Consultant in cross-examination about this issue said:
“[X] possibly got this from Ms J…using it to express how she feels. The mother did not believe intent to hurt/kill herself. More likely… to get feelings out… Could be attention seeking, seems to me to be a child not feeling okay for any reason.”
[X] commenced school in February of 2015 and soon after the school rang the mother about [X] falling asleep in class after being in the father’s care.
Proceedings were commenced on 27 February 2015 and the father filed his response on 10 April 2015. On 14 April 2015 the father alleged to New South Wales police that the mother had hit [X] with a bike. There is no persuasive evidence that could satisfy me that it is likely that the mother did any such thing.
The father was cross-examined about violence in the presence of the children and he said that there was more than one physical altercation.
It was put to him that his daughter was reporting, pushing and shoving to their mother, and the father said they witnessed me trying to stop Ms J going at [C].
It was put to him whether he would concede that the events in his home would have been destabilising and upsetting for the children and the father said “yes I couldn't agree more.”
The children were complaining to the mother that they were being locked out or locked in rooms and/or locked outside and separated from each other by way of discipline.
The father told the Family Consultant that he had become concerned over Ms J’s behaviour in 2014 but denied that the subject children were ever exposed to any form of family violence or mental health issue from Ms J.
The Family Consultant Dr T, opined that the father appeared complacent and not concerned as to this issue and continued to assert the mother was exaggerating the issues. Furthermore he also asserted that Ms J’s mental health deteriorated over time due to the mother stalking and harassing Ms J.
The Family Consultant noted that the father’s version of events is not supported by the subpoena material in which Ms J is clearly the perpetrator of harassment against a number of people including the mother.[4]
[4] Second family report paragraph 41
The evidence establishes that the children were complaining of family violence in the father’s home, the father conceded acts of family violence in the father’s home, Ms J made allegations to the police of family violence in December 2015.
Exhibit 4 is a video recording provided to the mother by Ms J. The video was recorded by security cameras that the father had installed in the home after Ms J made the allegation regarding being stabbed on the toilet.
The video depicts a violent incident between the father and Ms J. I am of the opinion that at one stage the father had his hands placed around Ms J’s neck and/or shoulder and he was clearly eventually sitting on her and restraining her. The father says there was an argument over a set of keys. He said that he was attempting to flee a dangerous situation.
It was submitted on behalf of the respondent father that the video was of no relevance to this case, that the video depicted a tussle between the father and Ms J and that nothing in this video reflects poorly on the father.[5]
[5] See written submissions paragraph 24
The father conceded that the incident occurred whilst Ms J was pregnant. That in and of itself reflects poorly on the father. The video is highly relevant to the issue of family violence in the father’s home. For those reasons I reject this submission.
Once the relationship with Ms J had ended relatively quickly from that time, the father met Ms A his de facto wife at the time of trial.
Ms A moved in to live with the father three days after the family report interviews for the second family report however the father made no mention of the potential development to the Family Consultant at the time.
Ms A was at the time of trial making allegations about the mother and was not prepared to accept the possibility at all that the mother had not stolen mail or stalked her, preferring instead to accept second and third hand hearsay gossip.
Ms A had quite clearly invested in the dispute and indeed she had read all of the affidavit material and family reports.
I am satisfied on the evidence that there is no doubt that the period leading up to the separation between the father and Ms J and indeed the period afterwards these children were drawn into a great deal of conflict in the father’s home.
It is absolutely clear on the evidence that these children have been exposed to parents who have engaged in very high conflict for a number of years. As the Family Consultant says at paragraph 154;
“the developmental consequences commonly seen in children living in high conflict situations include;
a. inability to manage conflict and normal periods of difficulties and peer relationships to the lack of positive role modelling from parents about management of conflict;
b. manifestation of significant mental health difficulties including anxiety and depression;
c. development of milestones, not being achieved as a result of the lack of stability in the familial environment and interjecting conflict;
d. being forced to choose one parent over the other as a means of escaping the ongoing conflict, or alternatively premature removal from both households and living with friends; and
e. poor self-esteem as a result of trying to resolve feelings of guilt and disloyalty.”
The evidence establishes that these children have been suffering ongoing psychological difficulty as a result of the parental conflict, and no doubt in my view as a result of the chaotic environment within the father’s home.
The chaos in the father’s home continued in that on 9 April 2017, Ms J abruptly relocated to Queensland taking [C] with her leaving [D] with her father, Mr H and [B] and [A], the children of the father and Ms J with the father.
The instability of the arrangements concerning the children continued when in June 2017, Ms J failed to return [A] then aged three and [B] aged 18 months after an agreed spend time with period.[6]
[6] Second family report paragraph 12
On 24 July 2017, there were further family report interviews and the father admitted under cross-examination that he told the family report writer that Ms J was:
“in an emotional sense, way off… Forgets children… Is toxic towards himself and Mr H, does not filter what she says to the children… Has heightened labile emotions… Rage, paranoia, risk taking.”
He further admitted that the children have been locked in rooms in the past and that Ms J had held [X] by both arms when she was attempting to kick him.
[Y], however, informed the Family Consultant that she had been locked outside by her father because she was not eating dinner. [Y] spoke about being scared of being outside because of “wolves.” The Family Consultant opined that she impressed as genuinely upset and afraid regarding this particular issue.[7]
[7] Second family report paragraph 111
On 6 October 2016, [X] refused to go with her father and ran away four times before the mother was able to convince her to go with the father. She allegedly told the maternal grandmother;
“I want to die. I want someone to kill me. I don't want to go through this crap anymore."
The father is now seeing a counsellor/psychologist so as to address issues relating to past relationships. It seems his issues relate as far back as to the relationship he had with his mother and to the repeated patterns of being with emotionally controlling and/or abusive women.
The evidence contained in the second family report raises concerns about the mother over involving the children in this conflict. The mother denies coaching the children, however I am satisfied that neither the mother nor the father have protected these children from conflict nor have they protected these children from their views held about the other parent.
Compounding the issue for these children is the fact that various people in both the mother’s and father’s lives also make disparaging comments about the other parent in the presence or hearing of the children.
Overall I am satisfied that these children are conflicted and in those circumstances will often say things that they believe the other parent wants to hear in order to please them and avoid further conflict.
It is the father’s case that the maternal grandmother is overly involved with the children and that she is maliciously undermining the father’s relationship with the girls.
Having witnessed the maternal grandmother be cross-examined, I formed the view that the maternal grandmother is very involved with the children as a result of her love for the girls and her desire to support her daughter. I am not satisfied that the maternal grandmother is maliciously undermining the father’s relationship with the girls.
Ms A gave evidence and was cross-examined. She is the father’s current partner.
The evidence satisfies me that Ms A predetermined the mother’s personality based on accounts provided to her from Ms J, the father, the father’s family and what [X] and [Y] had told her.
Ms A decided to have a meeting with Ms J who she described as a “complete fruitcake” to ask targeted questions and specific questions about the mother and notwithstanding her assessment of her as a “complete fruitcake”, she decided to believe Ms J.
Ms A was asked whether she would meet the mother now and she said “I think I would have to be drunk”… “I'm only teasing.”
Ms A clearly does not like the mother and in my view, shares the disparaging view held by the father.
One of the issues in this case is whether the father should be present during holidays. The alternative is at times Ms A would care for the children. I have concerns about Ms A’s ability to protect the children from her disparaging views of the mother.
There is ample evidence to support the submission that the mother has engaged the children in counselling for a number of years for the added benefit of obtaining evidence against the father.
One of the issues outlined by Counsel at the end of trial was whether there should be an injunction restraining the mother from referring the children to further counselling without providing an authority for the father to speak to the counsellor for the purpose of providing historical information and being involved in counselling should the counsellor deem it necessary.
I am satisfied that the evidence supports such an injunction.
The Law
These are proceedings involving children Part VII of the Family Law Act prevails. Guided by the principles and objects as set out in section 60B and acknowledging that it is the children's best interest that is my paramount concern I must consider the matters set out in section 60CC when making orders that are in the best interests of the children.
Parental responsibility is very much in issue in this case and accordingly I must consider and make a determination with respect to section 61DA of the Family Law Act.
The Legislation
There is a legislative intent for children to have a meaningful relationship with both parents.[8]
[8] Mazorski & Albright (2008) 37 FamLR 518
Meaningful in the sense of section 60CC(2)(a) is a qualitative rather than quantitative expression.[9]
[9] Ibid per Brown J
The evidence establishes that the children have always lived with their mother and that their primary attachment is their mother.[10]
[10] Second family report paragraph 167
Furthermore the evidence establishes that the father has never had a significant role in caring for the children having deferred to the women in his life. The evidence establishes that the mother was the primary carer for the children during the parties relationship, furthermore Ms J was the primary carer for the children when the children were in the father’s care during their relationship and indeed the evidence of Ms A is that she is heavily involved in the care of the children including disciplining the children and on one occasion sending young [Y] outside.
The Family Consultant is of the view, and I accept her view, that the father needs to be present both in the physical and emotional sense when the children are spending time with him in order to develop a meaningful relationship with the children.
The evidence establishes that the father will need to have holiday time if the children are to spend time with him during the holidays.
I am satisfied that the children would not benefit from a relationship during the school holidays where they are substantially cared for by Ms A whilst the father is at work as this would, as the Family Consultant opined, continue the conflict for the children and raise the anxiety in the mother.
Whilst there is ample evidence to make a finding that there was family violence perpetrated in the presence and hearing of the children whilst in the father’s care during his relationship with Ms J, the evidence does not establish that there is family violence in the father’s home at present.
There is no persuasive evidence that there is family violence in the mother’s home.
The father raises the concern that the mother has abused the children by deliberately alienating the children from the father. The evidence does not support such a finding.
In those circumstances I am not satisfied that there is a need to protect the children from either the mother or the father.
[X] told the Family Consultant that she would prefer to continue spending time with her father as she was at the time, that is each alternative weekend and I note that the time ran from Friday until Monday.
[X] went on to request of the Family Consultant as to whether she could spend only one weekend per month with the father, something that was consistent with what the mother requested during her interview.
[Y] was six years old at the time of interviews and given the pressure that [Y] was under, the Family Consultant did not ask specific questions of her, but rather let the child leave the interview.[11]
[11] Second family report paragraph 109
It was clear that [Y] was acutely aware that her mother becomes sad and cries when she attends the father’s home. Indeed when the Family Consultant asked her how she knew this, she replied “she (the mother) tells me.”[12]
[12] Second family report paragraph 110
Having regard to the level of conflict that these children have been exposed to, I am satisfied that I should give very little weight to the views expressed by them. Clearly they are influenced by the conflict and indeed possibly by their feelings of loyalty to their mother who is their primary attachment.
As I have previously said, I find that the children are primarily attached to their mother and that the father has never had a significant role in caring for the children.
Clearly the children have a strong relationship with the maternal grandmother particularly having regard to the level of involvement the maternal grandmother has at their school and with their care generally.
The mother has made every effort to be fully involved in making decisions, spending time with and communicating with the children.
The father has had little opportunity to make decisions regarding the children due to the fact that they live with their mother and the parents have little or no effective communication. Of note however, I do find that the father has taken a back seat in relation to spending time with the children and rather deferred to his partners from time to time to take on the parenting role.
There was some evidence that the father had some issues in paying child support however I note that the evidence establishes that child support was being paid at the time of trial.
As the issue in dispute in relation to spend time is of narrow compass having regard to the orders sought at the end of trial and disregarding the subsequent orders sought by the father annexed to the written submissions for the reasons previous given. I am of the view that there would be very little effect on the children in relation to the alternate weekend time on either proposal.
The father proposes block periods of time in the long summer/Christmas school holiday period. The Family Consultant expressed a view in cross-examination that week about during the Christmas holiday period would be the preferred arrangement and in the children's best interests.
The evidence establishes that the mother suffers acute anxiety when the children spend time with the father and I am concerned that a three week period with the father may destabilise the psychological wellbeing of the mother.
The evidence also establishes that the children are acutely aware of the mother’s anxiety when they spend time with their father and I am again concerned that their emotional wellbeing might be adversely impacted if a block period of three weeks was to occur during the Christmas school holiday period.
For those reasons I am satisfied that the father’s proposal for block period of time during the Christmas school holiday period would have a negative impact on the children and would be disadvantageous to them.
It is the father’s proposal the children spend half of all holiday periods with him whether he is present and on holidays or working. The mother proposes that the children spend holiday time with the father provided he is on holidays and can be present for the children.
The Family Consultant was of the view that if Ms A was looking after the children during holidays that might lead to further conflict and I am also satisfied that would be the case, having regard to Ms A’s disparaging comments about the mother and my previous finding that she will not ensure that the children are protected from her view of the mother.
The evidence also establishes that at times when the father has had holiday time with the children he has returned them to the mother earlier. The mother stated that if the father had to return the children to the mother during school holidays, she would not have any difficulty with that occurring. However I am concerned that it would be unsettling for the children and disruptive.
As I said previously, the father needs to be present emotionally and physically if he is to develop a meaningful relationship with these children. That cannot occur if he is not present during holiday time.
For those reasons I am satisfied that the father’s proposal with regards to holiday time would be disadvantageous to the children and not in their best interests.
There are concerns with regards to both parents with respect to their capacity to provide for the needs of the children, including emotional and intellectual needs.
Whilst the children have been living with their mother and she has been providing for them generally, there is some question mark about her capacity to provide for the needs of the children emotionally where the evidence establishes that she has exposed the children to conflict. This shows a lack of understanding of the emotional needs of the children to be protected from parental conflict.
Similarly the father has allowed the children to become involved in the conflict and has failed to protect the children from the conflict. The father furthermore failed to protect the children from the conflict within his relationship with Ms J and conceded that it would have had a negative effect on the children. The father in this respect has failed to meet the children's emotional needs in those circumstances.
Furthermore the evidence establishes that the father has deferred to his partners to take on the role of parenting. The father concedes that he needs to address his parenting issues. In those circumstances there is a concern over the father’s capacity to provide for the needs of the children.
Nothing needs to be said as nothing turns on the matters raised in section 60CC(3)(g) and (h).
The evidence establishes that both parents have put their conflict with each other as a priority rather than having the responsibilities of parenthood as a priority. Both parents need to address how they will individually address their own attitude and move forward in a way that protects the children from ongoing harm as a result of their conflict. In this regard they have both demonstrated a poor attitude to their children and to the responsibilities of parenthood.
The evidence establishes as a fact that there was family violence in the presence and hearing of the children in the father’s home during his relationship with Ms J. The evidence further establishes that his relationship with Ms A is not marred by family violence. As between the parents, there is no communication between them and there is no family violence between them.
In those circumstances, I am satisfied that the children will not be exposed to family violence in the home of either parent based on the evidence as it stands.
The mother’s proposal is that weekend time concludes on Sunday afternoon. Her argument is that this will ensure that the children are well rested before they attend school.
The evidence establishes that on at least one occasion when [X] first attended school that the teacher rang the mother and because [X] was tired after spending time with her father. That evidence does not establish a pattern nor a concern for me.
What is of concern to me is that the children are most likely to pick up conflict between their parents if the parents are present during changeover. It follows that if changeovers occur at school and the parents are restrained by injunction from being present at school at the conclusion or beginning of the school day if the children are not in their care, then the possibility of the children seeing them in conflict is greatly reduced.
The evidence further establishes that the maternal grandmother has in the past been present at changeovers. When being cross-examined the maternal grandmother stated that she would do only what the mother wanted her to do in relation to spending time at the school.
Having regard to the fact that there is very little trust and no real positive relationship between the maternal grandmother and the father, I am of the view that the maternal grandmother should also not attend the school at times of changeover. To that end the mother should do all things reasonably necessary to ensure that the maternal grandmother does not attend at changeover.
Parental Responsibility
Section 61DA provides 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.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person in the lives of the parent of the child has engaged in relevantly family violence.
It follows having regard to the findings of fact that I have made previously, that is, that there was family violence perpetrated by the father and his partner Ms J during the time the children were present and in their care that the presumption does not apply.
As to whether it is otherwise in the best interest of the children for me to make an order for equal shared parental responsibility the following matters are of note.
Whilst being cross-examined Dr T noted that the mother had historically tried to speak with the father that the father would not talk to the mother. Furthermore the father conceded that he and the mother do not verbally communicate, that they have no good communication and that he speaks down to the mother in his emails and texts to her.
Dr T opines in the family report that “ongoing court disputes and the concerning behaviour of the children when in the presence of both adults it will be necessary for the parent with whom the children live to have sole parental responsibility.”
Considering the evidence in its entirety, I am satisfied that it is in the best interests of the children that I make an order for sole parental responsibility and that that parental responsibility rests with the mother as the children will reside with her.
For these reasons I am satisfied that the orders I have made are in the best interest of the children.
Reserved Costs
The matter had previously been set down for trial. I made an order requiring the filing of further affidavits.
The mother forwarded her sealed documents to the father and informed him by way of letter that she would seek costs if the hearing was delayed.
The father did not file his affidavit material. The father sought an adjournment.
The matter was sufficiently complex with issues relating to alignment of a child or children, domestic violence and the mental health of adults who are caring for the children and in those circumstances it would have been very unsatisfactory in my view for the matter to proceed to trial without the father filing his material.
Accordingly I granted the adjournment.
The applicant mother sought costs thrown away as a result of the adjournment. I reserved those costs.
Submissions on behalf of the mother were to the extent that it is unusual to order costs in a parenting case but here there is some conduct on behalf of the father that has caused the delay.
Furthermore, that the court can make an order even if the father was impecunious and in that regard submissions were made that the father owns a house and a motor vehicle, and has a modest income.
The applicant submitted that the adjournment and the subsequent delay and waste was created by the father due to his failure to file affidavit material in accordance with a court order.
Submissions on behalf of the father was that the application for costs thrown away was premature. I note that I subsequently reserved the costs until after the final matter had been determined.
The father conceded that the adjournment arises partly because of the father’s failure.
It was submitted that the family report was out of date and that the mother’s affidavit of 17 March 2017 raised more serious issues.
Furthermore it was submitted that there had been a change in the father circumstances the day prior to the hearing because the children from the relationship with Ms J had come into his care and that he was now the primary carer of two young children.
In those circumstances, it was submitted that a costs order would be very prejudicial to him and the father noted that the financial circumstances of the mother were better than the father. The father submitted that he had limited financial capacity.
Whether I order costs or not is a discretionary issue. The general rule in section 117 of the Family Law Act is that each party of the proceeding shall bear his or her own costs. That general rule is subject to section 117(2) if the court is of the opinion that there are circumstances that justify it the court may make such order as to costs as considered just. The matters I must consider in that regard are set out in section 117(2A).
It is rare to make a costs order in a parenting matter and the general rule is not often displaced.[13]
[13] Hawkins & Roe (2012) 47 FamLR 526 at 13, 14, 146
This matter concerned two young children in circumstances where the consent orders had been made in 2013 at around the time that the father re-partnered with Ms J.
The circumstances of that relationship required a redetermination of the parenting issues.
During the course of the litigation both parties made allegations against the other.
There was much that changed in the father’s household, just prior to the previous trial date and it was appropriate to obtain an updated family report in those circumstances.
Whilst it is clear that the father failed to comply with a previous court order, it is true that further allegations were raised in the mother’s affidavit material of 17 March 2017.
In those circumstances, and having regard to the complexity of the matter, ultimately I am satisfied that it was appropriate to seek an adjournment and accordingly I am not of the view that there are circumstances that justify me in making a costs order.
Accordingly, I will make no order as to costs.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 7 September 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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