Mann and Irving
[2017] FCCA 573
•27 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANN & IRVING | [2017] FCCA 573 |
| Catchwords: FAMILY LAW – Parenting – 3 children – high parental conflict – presumption of equal shared parental responsibility applied – children to live with mother and spend significant and substantial time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 62G, 65DAA |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 Star & Duggan [2009] FamCAFC 115 |
| Applicant: | MS MANN |
| Respondent: | MR IRVING |
| File Number: | PAC 2200 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 31 October 2016 and 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 27 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Siggins |
| Solicitors for the Applicant: | Thornton Storgato Law Pty Ltd |
| Appearing for the Respondent: | In person |
| Counsel for Independent Children’s Lawyer: | Mr Schroder |
| Solicitors for the Independent Children’s Lawyer: | Benetatos White Solicitors |
ORDERS
That the parents have equal shared parental responsibility for the children X born (omitted) 2004, Y born (omitted) 2006 and Z born (omitted) 2010, subject to the Order made on 14 March 2016.
That the children live with the mother.
That the father spend time with the children and communicate with the children as follows :-
(a)during school terms, each alternate weekend from the end of school on Friday (or 3.00pm if not a school attendance day) until the start of school on Tuesday (or 9.00am if not a school attendance day), the first such occasion to commence on the Friday immediately following the making of these orders;
(b)during school terms, from the end of school (or 3.00pm if not a school attendance day) on the Monday following the weekend when the children are not spending time with the father until start of school (or 9.00am if not a school attendance day) on Tuesday;
(c)for one half of each school holiday period with the father having the first half of holidays commencing in even numbered years and the father having the second half of the holidays commencing in odd numbered years and for this purpose years ending in “0” are even numbered years and also for this purpose school holidays commence at 9.00am on the day after school finishes and conclude at 3.00pm on the day before school resumes for attendance by the children;
(d)in the event that Father’s Day occurs on a day on which the father is not spending time with the children, the father shall spend time with the children from 6.00pm on the Saturday before Father’s Day until 6.00pm on Father’s Day;
(e)in the event that any of the following occur on a day on which the father is not spending time with the children, the father shall have six hours’ time with the children:-
(i)the father’s birthday (omitted);
(ii)each of the children’s birthdays;
(iii)(omitted); and
(iv)(omitted).
(f)at such other times as may be agreed between the parents from time to time.
That in the event that Mother’s Day occurs during an alternate weekend occasion under order 3(a), the father’s time with the children shall conclude at 6.00pm on the Saturday before Mother’s Day and shall resume at 6.00pm on Mother’s day.
That in the event that any of the following occur during a day on which the father is spending time with the children the children shall return to the mother for six hours:-
(a)the mother’s birthday - (omitted)
(b)each of the children’s birthdays;
(c)7 January;
(d)25 December; and
(e)(omitted).
That the father’s alternate weekend time with the children under 3(a) shall cease to occur during school holidays and shall resume on the weekend next after the end of each school holiday which commences in an even numbered year and shall resume on the weekend second after the end of each school holiday which commences in an odd numbered year.
That the father’s alternate Monday night time with the children under 3(b) shall cease to occur during school holidays and shall resume on the Monday second after the end of each school holiday which commences in an even numbered year and shall resume on the Monday next after the end of each school holiday which commences in an odd numbered year.
That any occasions of the father spending time with the children when changeover will not occur by collection from or delivery to school:
(a)the mother shall deliver the children to the paternal grandmother’s place of residence 15 minutes before the start of the father’s time with the children and the father shall collect the children from the paternal grandmother’s place of residence at the start of his time with the children; and
(b)the father shall deliver the children to the paternal grandmother’s place of residence at the end of his time with the children and the mother shall collect the children from the paternal grandmother’s place of residence 15 minutes after the end of the father’s time with the children.
That the children shall attend (omitted) High School unless otherwise agreed in writing between the parents.
That in relation to the enrolment of the children in any school including the (omitted) Public School and (omitted) High School the mother shall ensure that she does all things necessary and sign any documents required to:
(a)Ensure the father is noted on the enrolment form as to his full particulars;
(b)Ensure that the father is noted as an emergency contact person with his telephone number;
(c)Ensure the father is able to attend the school and sign the enrolment form should he choose to do so;
(d)Ensure that the father is able to receive, at his own expense, copies of reports, school photographs and notices;
(e)Ensure the father is advised of any matters relating to the schooling of the children which requires interviews with the Principal, Counsellor or special educational needs and further the father be and is hereby entitled to participate in the resolution of each matter;
(f)Ensure that the father is able to make his own arrangements to attend parent teacher interviews and attend upon such events as parents ordinarily attend.
That in relation to any extra-curricular activities for the children in the event that a parent wishes to enrol a child in an activity that will occur in the other parent’s time then:
(a)The parents must communicate by email beforehand to agree as to such activity;
(b)In the event of no agreement then the parties will participate in Family Dispute Resolution prior to any application being made to the Court.
That in relation to communication regarding matters concerning equal shared parental responsibility:
(a)The parties will exchange email addresses within 7 days;
(b)The parties will communicate by email only in relation to matters concerning parental responsibility;
(c)The communications shall be polite and respectful;
(d)In the event of there being no agreement then the parties will attend Family Dispute Resolution save and except medical matters which may be referred to a Court by way of application.
That in the event the parties are required to notify the other of day to day parenting matters (such as illness of a child, being late for changeover) such communication are to be by way of text message in a polite and respectful manner.
That in the event of any medical emergency or hospitalisation the parties shall communicate as soon as practicable by telephone and text message.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of the children or within the children’s hearing and each of the parents is further restrained from allowing the children to remain in the presence of or within the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That the father is to ensure that each of the children is delivered to school at the appropriate time for start of school each day that they or any of them are in his care at that time, subject only to illness or emergency.
That in the event that any of the children fail to attend school, or attend school late, from the father’s care for 3 occasions in any school term, other than for reasons of their health as verified by medical certificate, then the father’s time with the children under order 3(a) shall end at 6 pm on Sunday on each occasion for that school term and the father’s time with the children under order 3(b) shall cease to occur for that school term.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of (omitted counselling service) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Post Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
Pursuant to section 13C of the Family Law Act1975, the father shall forthwith and within 7 days contact the intake officer of (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the ‘Managing Anger’ program offered by that organisation and subject to the assessment of suitability the father shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
That within six months the father pay to the mother costs in the amount of $5,665.
That within six months, the father pay to the Independent Children’s Lawyer costs in the amount of $11,154.50
That within six months the mother pay to the Independent Children’s Lawyer costs in the amount $7,082.50.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Mann & Irving is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2200 of 2013
| MS MANN |
Applicant
And
| MR IRVING |
Respondent
REASONS FOR JUDGMENT
Introduction
Despite the delay in the delivery of this Judgement which is over 4 months since the date of last submissions, there is nothing of significant complexity in this matter which has warranted such a delay. The reason for the delay is largely due to the demands of the Court in terms of its case load, particularly in parenting matters.
The children in these proceedings have a strong and established relationship with both of their parents, they are spending time with both of their parents and there was no risk of unacceptable harm identified by either of the parents or the Independent Children’s Lawyer. Other children in many of the matters which are currently before the Court are not so lucky.
At the time of final hearing however, there was a high level of parental conflict, which in itself was a significant negative influence on the children the subject of these proceedings.
The parties are the parents of three children:
a)X born on (omitted) 2004;
b)Y born on (omitted) 2006; and
c)Z born on (omitted) 2010.
The children currently live with the mother and spend time with the father pursuant to interim orders.
The mother sought sole parental responsibility for the children and that the children primarily live with her and spend time with their father from after school Friday until 6pm Sunday or the start of school Monday in week one and from 10am Sunday until the commencement of school Monday in week two, as well as some overnight time during school holiday time.
The orders which the father sought did not become clearer until the very first day of hearing. As far as the Court understood his application, it was for the parents to have equal shared parental responsibility, and for the children to live with the parents on an equal shared basis – both during the school term and during the school holidays. This was also the father’s position at the time of the Family Report interviews in October 2015.
Initially, in accordance with his Response filed on 26 July 2013, the father sought orders that the two older children live with him and spend time with the mother each week from after school Friday until 10am Sunday and for half of the school holidays and special occasions. He also sought an order that the youngest child live with the mother and spend time with him each Sunday and Tuesday from 10am to 7pm and on Father’s Day from 10am to 7pm.
Best interests considerations
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[3]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
Short Chronology
The father was born on (omitted) 1974 and is currently aged 42 years.
The mother was born on (omitted) 1975 and is currently aged 41 years.
The parties commenced a relationship in 1997 and were married on (omitted) 2000.
The parties commenced cohabitation in 2002.
On (omitted) 2004 the first child of the relationship, X was born.
The parties briefly separated in March 2006 for three months. They reconciled in June 2006.
On (omitted) 2006 the parties’ second child, Y was born.
In January 2010 the father went to Adelaide to work.
On (omitted) 2010 the parties’ third child, Z was born.
The father returned from Adelaide in early 2011.
In September 2011 the father moved out of the family home and took up residence in a granny flat at his parent’s home in (omitted). The mother and the children moved to reside at the mother’s parent’s home at (omitted).
In April 2012 the mother and children moved in with the father in the granny flat at the father’s parents’ home.
Between June and September 2012 the mother asserts that the father’s verbal abuse towards her increased and in September 2012 the police removed the father from his parent’s home following an argument with the mother. The police sought an Apprehended Domestic Violence Order for the protection of the mother from the father. However, the father returned to live with the mother and the children in December 2012.
The mother asserts that the parties separated on a final basis on 17 April 2012 with the mother and the children returning to reside with her parents in (omitted).
The father asserts the parties separated on a final basis on 19 April 2013. On the same day the father took the children X and Y to live with him without the mother’s consent. During the time the two children were in the care of the father they were also absent from school.
The police again sought an Apprehended Domestic Violence Order for the protection of the mother from the father on 1 May 2013.
The mother commenced proceedings in the Federal Circuit Court of Australia on 24 May 2013.
On 11 June 2013 Orders were made by the Court appointing an Independent Children’s Lawyer and directing the father to file and serve a Response and supporting Affidavit material. The matter was adjourned to 12 July 2013.
On 12 July 2013 orders were made by consent that all three children live with the mother, that X and Y spend time with the father from 10am Sunday until the start of school on Wednesday, that Z spend time with the father from 4pm until 6.30pm Monday and Tuesday and from 10am until 3pm on Sunday. The matter was set down for interim hearing at 10am on 26 July 2013.
On 26 July 2013 interim Orders were made by consent that all three children live with the mother, that X and Y spend time with the father from 10am Sunday until the start of school on Tuesday each week and half the school holidays, and that Z spend time with the father from 10am until 5pm each Sunday and from 4pm to 7pm each Monday.
On 2 September 2013 a final Apprehended Domestic Violence Order was granted by the Local Court at Parramatta for the protection of the mother from the father.
On 5 February 2015 an order pursuant to s.62G of the Family Law Act 1975 was made for the preparation of a Family Report.
On 6 August 2015 a further final Apprehended Domestic Violence Order was made for the protection of the mother from the father for 18 months following an assault on the mother by the father.
On 14 March 2016 final Orders were made by the Court in relation to the school the children are to attend, sole parental responsibility for educational decisions to the mother and that the father pay $2,730 costs to each of the mother and the Independent Children’s Lawyer.
On 13 May 2016 the matter was set down for final hearing to commence at 10am on 11 July 2016 and to continue to 12 July 2016.
On 11 July 2016, being day one of the hearing, the father filed his trial Affidavit. On this basis the hearing of the matter could not proceed on the listed days and accordingly the hearing was adjourned to commence for two days beginning on 31 October 2016. The father was directed to serve the mother and the Independent Children’s Lawyer with a copy of his Affidavit by 4pm on 15 July 2016. The costs of the mother and the Independent Children’s Lawyer were reserved and they were each directed, should they press their application for costs, to file an Affidavit in support of such application no later than 26 August 2016 and the father to file any Affidavit in reply in relation to the question of costs by 9 September 2016.
It should be said at the outset that where the parties’ evidence is in conflict, the Court prefers the evidence of the mother. While neither witnesses was particularly impressive, with the mother at times appearing cold as she gave her evidence and the father at times appearing angry and frustrated as he gave his evidence, on the objective whole, the story as told by the mother as opposed to the story as told by the father, generally shows a more plausible scenario of all that was going on at any particular time during the parties relationship and post separation.
Notwithstanding that the Court preferred the mother’s evidence, there were still a significant number of issues about which no findings are made, particularly so where such facts as asserted by the parents were not of particular relevance or weight in relation to the best interests considerations which the Court considered most relevant.
Final Hearing
The final hearing proceeded on the 31 October 2016 and 1 November 2016.
The mother relied upon the following documents at final hearing:
a)Amended Initiating Application filed 16 June 2016;
b)Affidavit of Ms Mann sworn 14 June 2016 and filed 16 June 2016;
c)Affidavit of Service sworn 17 June 2016;
d)Amended Notice of Risk filed 20 June 2013
The father relied upon the following documents:
a)Response filed 26 July 2013; and
b)Affidavit of Mr Irving sworn 8 July 2016 and filed 11 July 2016.
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit 1 – Parental Orders sought by the Respondent Father;
b)Exhibit 2 – Handwritten Proof of Evidence dated 31 October 2016;
c)Exhibit 3 – Handwritten copy of diary entries for X;
d)Exhibit 4 – Cops Entry event number E58738519, Sleeve 3 of Subpoena Material produced by New South Wales Police;
e)Exhibit 5 – SMS text messages, four pages;
f)Exhibit 6 – SMS text message dated 27 November 2014, one page;
g)Exhibit 7 – SMS text message dated 29 October 2014, two pages;
h)Exhibit 8 – SMS text message dated 24 March 2014;
i)Exhibit 9 – Family Report of Mr G dated 28 October 2015;
j)Exhibit 10 – Bundle of photocopied photographs;
k)Exhibit 11 – tabbed pages C, E and B from Sleeve 3, Subpoena material produced by New South Wales Police; and
l)Exhibit 12 – Bundle of SMS text messages.
Children’s views and the nature of the children’s relationships
As noted at the outset of these Reasons, the children have a strong and loving relationship with both of their parents. Despite the parent’s difficulties with each other and each other’s style of parenting, neither the mother nor the father have denied the children the right to their relationship with the other parent.
The children’s views were recorded by Mr G as follows:
a)In respect of X:
X perceived his mother as more concerned with supervision, stating his father lets him do “whatever I want”. Other differences between the parents were bedtimes – he said his father allows him to stay up till 10.30 but his mother tells him to go to bed at 9pm – as well as discipline – he stated that his mother “yells” while his father “explains.”
Regarding relatives, X said he loves them all, especially indicating strong attachments to both sets of grandparents…
Mr G reports asking X about any living preferences he might have. X replied with:
It would be good to share his weeks between the parents. Asked why,….replied it would be good because they would get more money.
b)In respect of Y:
Y was well aware of his parents’ arguments and said he wished they would stop and “get along”. He indicated that each person had said bad things about the other.
Y stated he enjoys spending time with his parents, grandparents and other relatives. He seemed to careful to not differentiate between the two families and stated a wish to live three days with one parent, followed by three days with the other. Asked why he preferred this to the current arrangements, she replied it would be fairer. Y said he would not like to live a full week about with either parent as he would miss the other one.
Z’s views were not sought nor discussed in the Family Report and the Court notes that she was just shy of being five years old at the time of the Family Report interviews.
The following observations of the children and the parents were recorded by Mr G:
a)In respect of the interaction with the father
The children immediately went over, initiating hugs and kisses. Z said she had missed him. …the children demonstrated good rapport with the father and he sustained involvement with all three, sharing his time between them. Mr Irving spoke clearly and positively and the boys were happy conversing about their interests. …X and Y parted appropriately but Z found it difficult and clung to Mr Irving. He settled her down and got her to leave the room with her brothers.
b)In respect of the interaction with the mother:
They ran over and offered spontaneous greetings. Z cuddled her and for a time followed her mother around the room, before settling down to play….All three maintained a similar degree of conversation with Ms Mann that had been apparent with Mr Irving, and she seemed equally comfortable relating to them.
c)In respect of the interaction with the maternal grandparents:
When the maternal grandparents were introduced, little changed as they easily fitted into the interactions and were readily accepted by the children.
A dire warning was given to the parents during Mr G’s cross-examination, namely that if the parental conflict continued it would place too much pressure on the children to the extent that it will be more psychologically comfortable for them to take sides and choose only one parent.
Such an outcome would certainly not be in the children’s best interest as they would miss out on their rights to know and be cared for by both of their parents, and to spend time on a regular basis with both of their parents.
Although the views expressed by the children according to Mr G appear to reflect their attachments but because they are age-related perceptions of fairness and because the statements given in the interview were not always consistent, the Court does not place significant weight on those views.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child and the parents obligations towards maintaining the child
The mother’s evidence is that the father was largely absent from the daily lives of the children during the parties’ relationship. She asserts that the father did not attend to feeding or changing the children when they were babies. She says that when the father commenced work in Adelaide in 2010 he would return to Sydney about once a month for between two days to a week at a time. She says that during this time he spent very little time with the children and that this was the reason behind many of their arguments. She says that she would beg him to be a father to the children.
The father was not present at the birth of the parties’ third child, Z.
The mother’s frustration with the father being absent from the children’s lives continued even after the father returned to Sydney following his employment in Adelaide. She says that he would spend large amounts of time away from the family and he showed no interest in the children’s activities such as soccer training and did not assist in their care. The mother concedes that the father did provide “some money” towards the running of the home.
Even after separation the frustration of both parents towards each other continued, and may even have intensified. An example of this was the issue of the children’s schooling, made all the more difficult by the parents disagreement and inability to come to a mutual position about the payment of the children’s school fees and the father’s ultimate failure to pay for such fees despite Court orders. Such dispute resulted in the Court making an order granting the mother sole parental responsibility for educational decision-making and the older children being taken out of the (omitted) College during 2016.
The father says that despite there being Court orders in place for the father to spend time with the child Z, the mother did not comply with the orders and instead would “dictate the times” he spent with her “at her discretion”. The father did not cross-examine the mother about such matters nor did he at any point in time bring any application which might have been of assistance to him in having the mother comply with the order, if indeed this is not something that she was doing.
The father has been unemployed throughout 2015 and 2016. He does not pay child support.
Furthermore the father has failed at the time of the final hearing to comply with a Court order to pay the mother’s costs in the sum of $2,730, being an order of the Court made on 14 March 2016.
Likely effect of any changes in the children’s circumstances; Practical difficulty and expenses of a child spending time with a parent
There will be some changes to the children’s lives once final orders are made. However, they will have more stability in their daily routines, while still being able to maintain strong relationships with both of their parents.
A continuing issue for the father, despite the orders made previously in this matter, was the education of the children. The children had previously attended (omitted) College (including at the time of the Family Report interviews), however at the time of hearing they were enrolled in the local public school near their mother’s residence.
X reported to Mr G that he found the (omitted) school a very strict place, claiming he got too much homework and that the teachers yelled at him. He did not mind the religious studies, finding them interesting.
The father stated in his Affidavit that he has “strong concerns and fear” for his children attending the local public school and much of his Affidavit went to the issue of the children attending (omitted) College for the remainder of their schooling. However, the issue regarding parental responsibility regarding issues of education was decided on a final basis by Judge Dunkley on 14 March 2016 where the mother was granted sole parental responsibility for this issue.
During cross-examination, the father conceded that it was appropriate for the children to remain at the local school and them to attend the local high school in due course, as long as they were all together.
The parents both live in suburban Sydney and no practical difficulty and expense has been identified in respect of the children spending time with either of the parents.
Maturity, sex, lifestyle and background of children and parents
The mother is currently employed albeit on a part-time basis, and works for a (omitted) company at (employer omitted).
The mother is of (omitted) background, and originally a (religion omitted)[4] who after her marriage to the father converted to (religion omitted).
[4] (omitted)
The father is of (omitted) background, and he is a (omitted).
The father is unemployed and lives at (omitted). To the Family Consultant he described his family relations as “awkward”.
The father is enrolled in a (omitted) degree which he commenced in 2009 although he is yet to finish.
The children are (religion omitted).
Capacity to provide for needs of the children, Attitudes to the children and Responsibilities of parenthood
There is significant dispute between the parents in relation to their respective capacities to provide for the needs of the children, both physical and emotional and their respective attitudes to not only the children, but also to the responsibilities of parenthood.
The father is what one might describe as a more relaxed parent. The mother is stricter and prefers to have routine and rules in place. The children have been navigating between the two households for some years now since separation, but not without some difficulty.
There were numerous incidents of disagreement mentioned in the parties’ evidence.
The mother is of the view that the father is an irresponsible parent.
The father is critical of the mother for example by saying “…when the children are in my care, they are anxious to receive lunch orders, as it is a treat not granted to them on any occasions by Ms Mann”.
The father says that he has attended to the children’s education “solely since the beginning of their education” and goes on to list a number of events he attended or assisted the children with regarding their education such as:
In relation to Z education I have attended all major events since preschool solely. I attended her first day of day-care, Ms Mann did not attend.
I prepared Z for her intake exam at (omitted college) and she was awarded the Gold Prize. Ms Mann did not participate in her preparation.
I attended Z graduation from day-care. Ms Mann did not attend.
I attended Z first day at Kindergarten at (omitted) College, Ms Mann did not.
I prepared X for his HSIE exam.
I attended X’s school assembly in 2014 and 2015, Ms Mann did not.
I attended Y school assembly in 2015, Ms Mann did not.
(errors in original)
The father has concerns that the mother does not place a great deal of weight on the children’s education and deliberately does not advise the father that the children have homework when they are in his care. He says that the mother on a number of occasions has denied the children time to study or prepare of exams.
The children were also historically, on numerous occasions late to school or fully absent, during the days that they were spending time with their father. In his evidence, the father explains this issue as follows:
The reasons X and Y missed out on school on the days they did, was either due to them being ill (and therefore a doctor’s certificate) or due to Ms Mann’s actions.
Whether Ms Mann was aware of her actions or unaware of her actions, in any case presents a major concern. Ms Mann’s actions prevented the boys from attending school. I have had to explain their absence because on most of these occasions she has done so on the days that I have them in my care. These situations have also occurred on days that I have helped her care for the children whilst she was at work.
The Court finds that both parents are capable and loving parents, despite their differences in parenting styles. They are both capable of meeting the children’s needs, although they have different strengths in meeting such needs.
The children will certainly benefit from having both of their parent’s continued involvement in their daily lives.
Allegations of Family Violence and relevant orders made
The mother makes a number of allegations of family violence against the father.
She says that she recalls that during the first couple of years prior to the birth of the parties’ first child, X, the father started being verbally abusive towards her. She said that she recalls the father calling her a “dumb cunt” and that he would threaten her with words to the effect of “I will kill you if you ever leave me” and “you deserve to be bashed”.
The mother says that she observed the father to have a short temper during their relationship and that he would throw furniture or break objects around the house. The mother recalls an occasion when the father broke the home telephone when the mother tried to call the police during a domestic argument with the father. The mother says that this behaviour would occur “at least once a fortnight but on some occasions once a week”.
The mother says that in 2006 the father would say words to the effect of “I will fucking put your head through the wall”, “you are a dumb whore” and “you ugly bitch”. The mother says that the father would often make these comments in the presence of the children.
The mother recounts an occasion when the parties were arguing in 2008 when the father swept his arm across a kitchen bench pushing groceries to the floor and his arm connecting with the mother’s face. The mother tried to leave the premises however says that the father pushed her back and grabbed her by the arms leaving bruising.
The mother says that following her advising the father that she wanted to separate on a final basis in April 2012 the father began harassing her on a more regular basis. She says the text messages were threatening and constant. It was following this that the father removed the two older children from their school and kept them at home with him for one week refusing them to see the mother.
The mother says that she agreed to move to the granny flat at the father’s parents’ home with the children in an attempt to lessen the likelihood of the father taking the children away from her again. She says the plan was for her and the children to live in the granny flat and for the father to live in the main house with his parents.
The mother says that the father’s behaviour escalated between June 2012 and September 2012. He would regularly abuse the mother and his own mother. The police were called on a number of occasions with the father being escorted by the police on one occasion. Following this, the father’s parents refused him to return to the property and the mother began living in the main house with the father’s parents and the children. Despite this the mother allowed the father to spend time with the children for a few hours per week. Thereafter the father returned to live at the granny flat.
The father again retained the two older children on 19 April 2013 when the mother had returned to live with her parents. It was this event that led the mother to file an urgent application with the Court which was heard on 12 July 2013.
On 1 May 2013 the mother attended (omitted) Police Station following the father becoming verbally abusive towards her where an Apprehended Domestic Violence Order was sought and granted on a final basis for 12 months on 2 September 2013 for the mother’s protection against the father.
The mother describes an incident where she was attending the father’s home to collect the youngest child, Z, from the father. She says that the father became enraged and pushed the mother with both hands on her shoulders in the direction of stairs. The mother managed to grab hold of the railing before falling down the stairs. The mother managed to get the child and at this time the father head butted the mother.
The father was cross-examined at some length about this incident. He denied the incident as described by the mother and particularly that he did not head-butt her or push her down the stairs. The father however considered that the mother should not have been at his home because these were private premises and as such she was trespassing when she came to pick up the child.
The Court is not able to make any findings about this particular incident which on either parent’s version is troubling, but particularly on the mother’s version.
A further Apprehended Domestic Violence Order was issued and became final on 6 August 2015 with the mother and the child, Z, being named as protected persons.
The father denies many of the assertions made by the mother. He says that the mother has fabricated allegations of abuse and violence against him to the police and to the Court in order to keep the children from him.
The father’s evidence, not only in his extremely lengthy and mostly irrelevant Affidavit, but also in his oral evidence given during the hearing takes a very strong view that the mother is not fearful of him, that he is not a person who exhibits anger or violent behaviour and that the allegations which the mother makes against him of family violence are fabrications.
The father says that “the mother has never experienced any abuse or violence throughout our relationship” the father says that he is a “calm person and I am patient”[5]
[5] Paragraph 128 of the father’s Affidavit filed 8 July 2015
The father was self-represented during the hearing. While the Court understands that the Court room may be an intimidating place, and that legal procedure may be difficult for those who are not trained in the law to understand, the level of poor behaviour, frustration and anger exhibited by the father during the entirety of the proceedings was a poor reflection of his ability to self-regulate and act appropriately.
An example of what occurred at the hearing was the following exchange between Counsel for the mother and the father during the cross-examination of the father:
Mr Siggins:
Just returning back to equal shared parental responsibility, if this is going to happen at all there has to be a way forward by which you can communicate with the mother in a civil manner, would you agree with that proposition?
Mr Irving:
No. I would think that if we move forward we establish, the mother can communicate with me. The SMS’s I’ve provided you have only seen maybe two or three that have been in that fashion but that’s after four years, five years of what she is doing to me. It’s taken that long to react like that. But all my other SMS’s and obviously time was against me, are all here four folders of them are all of different in nature, completely different. All of the ones I’ve shown you demonstrate- were they abusive? Were they aggressive? No they weren’t. They were descriptive, they were in detail, they were respectful. That’s how I am. But anyone pushed to a corner to the point where they are gonna and will and that’s what’s happened to me. She’s doing that strategically. I communicate with her on everything. Unless you can prove where and how show me.
Mr Siggins:
Mr Irving.
Mr Irving:
Mr Siggins, Mr Siggins. Very little.
Mr Siggins:
I’m asking the questions Mr Irving.
Mr Irving:
I’m helping the situation.
Mr Siggins:
No you’re not helping the situation, you’re not helping yourself frankly
Mr Irving:
…. SMS transcript from her provider, very little.
Judge Obradovic:
Mr Irving, Mr Siggins asks the questions, you answer the questions.
Mr Irving:
Sorry your Honour.
Judge Obradovic:
You will get the opportunity to answer all of these matters later on.
Mr Irving:
What? Do I?
Judge Obradovic:
Yes.
Mr Siggins:
I’ve explained that to you haven’t I?
Mr Irving:
Oh sorry, my apologies.
Judge Obradovic:
I said it to you at the beginning of the trial.
Mr Irving:
Ok. Yep. Too much to take in. So I can have a chance to reply to this?
Judge Obradovic:
Yes.
Mr Irving:
Please.
Judge Obradovic:
You were asking the father about communicating with the mother in a civil way and the father says no that’s not what needs to be done amongst other things.
Mr Siggins:
Now in your affidavit and in fact in your questioning of the mother during the course of today, what is your proposal then moving forward in respect of a way that you can communicate with her civilly?
Judge Obradovic:
Mr Irving. Mr Siggins can you ask that question in a way that’s not just directed to the father communicating with the mother in a civil manner? Perhaps both of them.
Mr Siggins:
Yes
Judge Obradovic:
I think that’s what Mr Irving is taking exception to. The underlying suggestion that he’s not being civil to the mother but she is being civil to him.
Mr Siggins:
Certainly Your Honour. Perhaps if I put it this way. Putting aside fault - who’s to blame in respect of communication between the both of you, what is your proposal moving forward as to how you will communicate with the mother starting with education?
Mr Irving:
I will continue to communicate with the mother as I have communicated with the mother over the many years in regards to not only the children’s education but in everything I’ve communicated with her. But you will agree, you would agree that on occasion and I would agree and I think it is actually human that on occasion when pushed and when provoked you will respond, and I’m sure you’ve done it, we’re all guilty of it in a way that you would not otherwise do. Those occasions Mr Siggins are rare, are rare. So rare that there is significant emotion. The way I’ve communicated with Ms Mann about the children is as I’ve shown you. I’ve continued to put aside the drama and the commotion and updated her with exams, fees in the most respectful of ways. I’ve got 24 hours I will provide you with all the evidence you need. But Mr Siggins it takes two to communicate. It takes two to communicate. It can’t help if I’m talking and I get no response how, how, how would I communicate.
Judge Obradovic:
Does that frustrate you when you don’t get a response?
Mr Irving:
It does.
Judge Obradovic:
And how are you going to deal with that frustration in the future?
Mr Irving:
I don’t know. I don’t know. I’m going to have to go see or maybe you guys can get intervention I don’t know. For example there are situations when there are breaches of court orders so much so that every week it happens three or four times to date. I’ve discussed it with her hundreds of times and I get no response. What do I do? What do I do? I’ve come to the Court. I’ve discussed it with the Court, they gave me intervention form, they gave me this, they gave me that, I’ve taken. I’ve sent her an SMS, I’ve said Ms Mann this is what’s happening blah blah blah. I don’t give a fuck. What do I do? What do I do when I’m provoked like that? I’ve made a concern to the Court about abuse to the children from the father directly, the court orders put in for the father to be the sole carer for the children and to date over the last three years has been three or four times a week. I addressed this concern about three years’ time. I’ve been addressing it for three years. And you want to ask me how I’m going to deal with the frustration. This is how I’m dealing with it. By coming to the Court by asking the court what can I do. And when I get out of the Court she does again and I go to the police and they say look we can’t interview you are talking about the Family Court the one with the most powers in the land and we have no jurisdiction. So when I’m in the Court the police can’t help. When I’m here, what can I do? It’s coming from there. I’ve approached it to the Court. Three years I’ve been trying to, have I been there once? Have I abused her once? Have I assaulted her once? No. Because I’m not that way inclined. But I’ve been talking about my concern about the children being abused for three years still. What have I done towards it? How have I reacted? That shows my colours. The worst thing I’ve said, you’re evil. Yes. Yes. When the children are being forced to be picked up and change their name, involved in conversations to change their names. They are just sitting there watching it. I call the police over and you pervert the course of justice and they send them away. Yet you’ve got all the evidence there. I’ve got a 58 minute recording of you admitting it. And then you come here and make out it’s not the case. That I’ve got some issues of anger and violence and abuse and you want me to be calm, I am calm.
Mr Siggins:
Do you call this calm sir?
Mr Irving:
No, now I’m not calm. You’re right, you’re asking me. I’m being reactive. You’re asking me and I’m showing you how it is to be me.
Mr Siggins:
And this is how you react whenever you are challenged by the mother isn’t it?
Mr Irving:
No.
Mr Siggins:
Whenever you’re challenged about.
Mr Irving:
No no no, you listen. Mr Siggins, Mr Siggins
Mr Siggins:
Whenever you are challenged about agreement of school about the disagreement of
Mr Irving:
Mr Siggins, your Honour. This is an assumption.
Mr Siggins:
This is how you .
Mr Irving:
Are you telling me how I react? You’re telling me?
Mr Siggins:
I’m putting it to you this is how you react isn’t it?
Mr Irving:
Yeah ok.
Mr Siggins:
This is also how you have reacted with other people as well isn’t it?
Mr Irving:
Is it?
Mr Siggins:
I call on the subpoena evidence of the New South Wales Police. In 2012 you had an altercation with your own father and police were called weren’t’ they?
Mr Irving:
No. Mr Siggins.
Mr Siggins:
Answer the question please sir.
Mr Irving:
Yes I did have an altercation with my father and the police were called and it was set up and coordinated by Ms Mann and the evidence is on my desk if you want to have a look at it.
Mr Siggins:
The mother is at fault on that one?
Mr Irving:
Yes she is. Yes she is. She said in her Affidavit and she said in the statement what? That we were living apart? Were we Ms Mann? Is that what happened? You tell the police? And what did I do? In your statement what did you say, you were calling them for what reason? Cause I told you to come and give me a kiss is that worthy of an assault? What’s the issue? What’s the issue there Mr Siggins?
Much of this evidence was given by the father in a very loud voice.
The Court having observed the father during the two days of final hearing is of the view that the father does at times fail to control his emotions and self-regulate. He certainly did not appear as a calm or patient person during much of the final hearing.
Family violence can take many different forms, as is for example, made clear by the definition contained in the Act.
Importantly from the Court’s perspective Mr G stated that during the assessment there was no indication of the children feeling apprehensive with the father, as one might expect if they had been affected by family violence. This evidence was further explained in cross-examination, when Mr G said that often one sees indicators in children of some negativity or apprehension towards the parent who is allegedly violent, not necessarily to them, but to their mother.
Despite the admissions of both parties in relation to their volatile relationship, and the parents’ hostile interactions, the children’s relationships with the parents have not been adversely affected because of this.
Importantly, the mother does not make any allegation that the father was violent, whether physically or verbally, towards the children. The fact that the parents are no longer together removes much of the circumstances which gave rise to the allegations of family violence, being the intimacy of the marriage relationship. The risks of family violence arising out of parental conflict are further reduced by the certainty of the orders including the allocation of parental responsibility.
Likelihood of further proceedings
These are final parenting proceedings.
The orders which the Court makes will give clarity and certainty to the parents about their responsibilities to the children and their time with the children.
Primary Considerations
The Court is faced with the task of balancing the competing primary considerations set out in s 60CC(2) of the Act.
In applying the primary considerations, the Court must give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit of the children having a meaningful relationship with both of their parents.
The test to be applied in striking that balance is whether the parenting orders that are ultimately made will expose the children to an unacceptable risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[6]
[6] Janssen & Janssen (No.2) [2016] FamCA 796
It has been held that a meaningful relationship is one which is important, significant and valuable to the child[7]. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
[7] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC at [121]
As already discussed, the children will benefit from continued relationships with their parents. The mother certainly, despite her allegations, did not submit to the Court that the children’s time with the father ought be minimal or supervised. She understood the benefit of the children retaining a relationship with their father and supported this.
The Court does not find that there is any unacceptable risk of harm that the children will be faced with should they continue to see and spend regular time with both of their parents.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[8] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[8] See note 1 s61C
The level of parental conflict is very high. It would be fair to say that each of the parents blames the other for things which have gone wrong in the past between them.
The Family Report identified a number of underlying issues between the parties. The report writer identified that continuing friction between the parties was the most evident issue, with each party blaming the other for poor behaviour. Mr G reports that the mother asserts the father to exhibit regular uncontrollable outbreaks of anger directed towards her. He reports the father as saying that he is provoked by the mother and he asserts the Court and Independent Children’s Lawyer have been “mislead and manipulated” by the mother.
Mr G agreed with the proposition that there was a toxic level of communication between the parents. While the Family Report recommended equal shared parental responsibility Mr G was of the view that if the evidence was such that the parents were most likely not going to be able to consult with each other then the parental responsibility should shift to the person with whom the children spend the greater amount of time.
Mr G was of the view that in order for equal shared parental responsibility to work between parents, parents are not expected to agree on everything but rather that they should be able to resolve any disagreements without strong conflict.
Both the mother and the father agreed when cross-examined by Counsel for the Independent Children’s Lawyer, that there had been difficulties in communication but that despite those difficulties each of them was capable of communicating with the other in relation to long-term decisions whether by way of polite text message or email.
On balance, the Court is of the view that the presumption of equal shared parental responsibility is not rebutted. As such an order for equal shared parental responsibility will be made, qualified by the Order made on 14 March 2016.
Section 65DAA is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons particularly the high level of conflict between the parents, equal time is not supported by the facts in this matter, but significant and substantial time is[9].
[9] within the meaning of s65DAA(3)
Costs
On 11 July 2016 costs of the mother and the Independent Children’s Lawyer were reserved by the Court, those being thrown away by the adjournment sought and granted by the father.
At the conclusion of the hearing, the Independent Children’s Lawyers made an application for costs of the final hearing to be borne by each of the parents equally and a costs order against the father in respect of 11 July 2016. In essence, after taking account of costs already paid and costs orders previously made, costs against the mother in the amount of $7,082.50 were sought and costs against the father in the amount of $11,154.50 were sought.
The mother did not wish to be heard against the costs order sought by the Independent Children’s Lawyer. However, it was submitted on her behalf that the father should pay such costs as sought by the mother as she had not been paid by the father in respect of costs order made on 14 March 2016. The mother costs thrown away by the adjournment of 11 July 2016 in the amount of $5,665.
The father agreed to pay the costs of the Independent Children’s Lawyer in respect of the final hearing and the costs thrown away on 11 July 2016, and the costs of the mother in respect of 11 July 2016, being a total amount of $16,819.50 within 6 months.[10]
[10] Rule 21.01 FCC Rules
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out in the forefront of these Reasons.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 27 March 2017
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