March and Carey

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARCH & CAREY

[2013] FCCA 572

Catchwords:
FAMILY LAW – Parenting – high conflict – child with behavioural difficulties – lack of stable accommodation – alcohol use.

Legislation:
Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

MRR and GR [2010] HCA 4

Applicant:

MS MARCH

Respondent:

MR CAREY

File Number:

BRC 3016 of 2012

Judgment of:

Judge Harland

Hearing dates:

16, 17 & 18 April 2013

Date of Last Submission:

18 April 2013

Delivered at:

Darwin

Delivered on:

21 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Wardel

Solicitors for the Applicant:

Hodgson Lawyers

The Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr Andrew

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the mother Ms March and the father Mr Carey have equal shared parental responsibility for the major long term issues of the children [X] born [in] 2000, [Y] born [in] 2008 and [Z] born [in] 2011 (the children).
That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
That the children live with the mother.
That the children spend time with the father every second weekend commencing on the first Friday after the date of these orders:
(a)In the case of [X], from after school Friday to 5.00pm Sunday;
(b)In the case of [Y] and [Z], from 9.00am Saturday to 5.00pm Sunday;
(c)These arrangements are to cease during school holiday periods and recommence on the first weekend after school resumes.
Provided that the father is able to secure time off from work, the children shall live with their parents for school holiday periods, except the Christmas school holidays, as follows:
(a)The first half of the gazetted Queensland school holidays in even numbered years with the father and in odd numbered years with the mother, and
(b)The second half of the gazetted Queensland school holidays in odd numbered years with the father and in even numbered years with the mother;
(c)For the purpose of these orders, the school holiday time shall commence:
(i)When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)When a parent's time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when spending time shall end at 9:00am on the day the school term recommences;
(iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
(d)That the children shall communicate with the parent they are not spending time with on school holidays each Tuesday and Thursday between 6.00pm and 6.30pm with the mother to initiate the call.
That for the 2013, 2014, and 2015 Christmas school holiday periods only, and provided the father is able to secure time off from work, the children will spend from 3.00pm Friday to 3.00pm the following Friday with the mother in weeks one, three and five in the 2013 and 2015 years, and with the father in weeks two, four and six, and in the 2014 year with the mother for weeks two, four and six, and with the father for weeks one, three and five.
From 2016 the children will spend the Christmas school holiday periods in accordance with order 5 (a), (b) and (c).
That notwithstanding any previous orders, the children shall spend time with their parents on special occasions as follows:
(a)Christmas Day:
(i)From 9.00am Christmas Eve until 2.00pm Christmas Day in even numbered years with the father and in odd numbered years with the mother; and
(ii)From 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with the father and in even numbered years with the mother.
(b)Easter:
(i)From 9.00am Good Friday until 12.00 noon Easter Sunday in even numbered years with the mother and in odd numbered years with the father; and
(ii)From 12.00 noon Easter Sunday until 5.00pm Easter Monday in odd numbered years with the mother and in even numbered years with the father.
(c)On the birthday of each child with the parent they are not living with on the day:
(i)     If a school day, from after school until 7.30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With that parent to be responsible to collect and return the children.
(d)On the mother's birthday when they are not living with the mother on that day:
(i)     If a school day, from after school until 7:30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With the mother to be responsible to collect and return the children.
(e)On the Father's birthday when they are not living with the father on that day:
(i)     If a school day, from after school until 7:30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With the father to be responsible to collect and return the children.
With the father on Father's Day weekend from after school Friday until 5.00pm Sunday and if that is a weekend that the father would not ordinarily spend time with the children then the father shall forego the next weekend of time.
With the mother on Mother's Day weekend from after school Friday until 5.00pm Sunday and if that is a weekend that the mother would not ordinarily spend time with the children then the mother shall forego the next weekend of time.
That the children communicate with the father as agreed between the parties and failing agreement as follows:
(a)By telephone on each Tuesday and Thursday between 6.00pm and 6.30pm with the mother to initiate the call.
That neither parent will denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.
The parties shall keep the other informed of the children's doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent.
The parties shall keep the other informed of any daycare, school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the children's doctors, health care and other treatment providers or daycare, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least seven days prior to relocating their residence from where they currently reside.
Subject to the conditions imposed by the children's schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That the mother and father shall not consume or be affected by illicit drugs whilst the children are in their care and each parent shall ensure that no other person uses or is affected by illicit drugs in the presence or hearing of the children.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Notation

A.That the mother and father shall not consume alcohol to excess during the time the children are in their care and each parent shall ensure that no other person uses or is affected by alcohol in the presence or hearing of the children.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 3016 of 2012

MS MARCH

Applicant

And

MR CAREY

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting dispute concerning the welfare of [X], [Y] and [Z]. To their credit the parents have agreed on living arrangements for [Y] and [Z]. The parents also agreed that they should share parental responsibility. The only issue in dispute at trial was whether [X] should live primarily with his mother or his father and the time he should spend with the other parent.

Background

The applicant mother Ms March was born [in] 1979 and is aged 33. The respondent father Mr Carey was born [in] 1979 and is aged 34.
The mother states that they started living together in April 1999. The father states they started living together in September 1998. Nothing turns on this.
The parents have three children:
a)[X] born 28 October 2010, aged 12;
b)[Y], born 29 December 2009, aged four; and
c)[Z] born 9 January 2011, aged two.
The parents separated on 6 November 2011.
The parents agree that [X] has serious behavioural issues. He was diagnosed with ADHD and at one stage was prescribed Ritalin. The parents disagree as to whether [X] benefited from that medication but agree that the side effect was that it kept him awake. The concern about his behavioural disturbances is the impact on his development and learning and his ability to form and maintain friendships.
Interim consent orders were made on 20 June 2012. Those orders included an order for the appointment of an Independent Children’s Lawyer (ICL) and a family report. They also included an order for interim equal shared parental responsibility. Order 6 provided for the three children to spend time with the father from 4.00pm each Friday to 4.00pm each Saturday. Order 7 provided for the three children to spend from 4.00pm each Saturday to 4.00pm each Sunday with the mother.

Mother’s proposal at hearing and documents relied on

The mother’s proposal at the final hearing was for the parties to share equal parental responsibility. When she commenced the proceedings she was seeking sole parental responsibility. She seeks that the three children live with her and spend time with the father on alternate weekends, half the school holidays and special days.
During the course of the hearing the mother indicated that she agreed with most of the ICL’s Minute except with respect to the amount of time the children spend with the father because of the instability of the father’s accommodation. I will discuss the father’s accommodation further below.
The mother relied on the following affidavits:
a)Affidavit of the mother sworn 4 April 2012, filed 13 April 2012;
b)Affidavit of the mother sworn and filed 19 March 2013;
c)Affidavit of Ms S sworn and filed 19 March 2013;
d)Affidavit of Ms H sworn and filed 19 March 2013.

Father’s proposal at hearing and documents relied on

The father was unrepresented at the hearing as his grant of legal aid was terminated earlier this year.
The father sought orders for equal shared parental responsibility. By the time of the final hearing he agreed that the youngest two children should remain living primarily with their mother
He sought that [X] remain primarily with him and spend time with the mother during the weekends. He was not as clear about the spend time with orders he wanted with the two younger children although he wanted more time than he was currently having. He too agreed with many of the orders in the ICL’s Minute.
The father relied on his affidavit sworn and filed on 20 June 2012. I granted him leave to tender, without objection, a signed handwritten statement of his partner Ms B. She was cross-examined. As he was unrepresented and had not filed an updated affidavit, again without objection, I asked the father some questions about his current circumstances before he was cross-examined.

Independent Children’s Lawyer’s proposal at hearing

The ICL tendered a Minute of Proposed Orders which are annexed to this judgment. The mother consents to the ICL’s proposed orders except orders 4(a) and (b). She proposes that [Y] and [Z] spend time with the father every second weekend from 9.00am Saturday until 5.00pm Sunday. This is because of the father’s accommodation which is discussed below. She also proposes that [X] spend alternate weekends with the father from after school Friday until 5.00pm Sunday as the father works from early in the mornings on weekdays and would be unable to supervise [X] in the mornings and take him to school.
The father also consents to most of the ICL’s proposed orders. The exception is that he seeks that [X] remains living with him. He also seeks more time with the younger children.
During final submission I expressed concern about the enforceability of order 19 of the ICL’s proposed orders. I was concerned that if made as an order it might lead to further conflict if a party brought a contravention application. I explained my concerns and the parties and the ICL were content for this to be made as a notation.

Evidence

The expert

The Family Consultant, Mr C prepared two family reports annexed to affidavits filed on 23 August 2012 and 7 March 2013. He was cross-examined by all the parties.
In his updated report Mr C notes that the father’s accommodation was problematic and that his partner had severe health problems. He also noted that there continued to be high conflict between the parties. He observed at paragraph [27] of his second report that in his view the conflict between the parents was becoming more entrenched.
Mr C opined at paragraphs [17] and [26] that both parents are genuinely committed to their children. Having heard both parents give evidence I agree with that assessment.
It became clear during the course of Mr C’s oral evidence that the father in particular had not been open and honest with Mr C during the course of the interview for the second report which took place on 4 March 2013. The date is significant in light of the subpoenaed documents from [X]’s school which I will refer to below.
In light of the independent evidence which was put to Mr C during his oral evidence, he changed his view and stated that he did not think things were as finely balanced between the parents. He expressed concern about [X] continuing to struggle in school, being unable to conform. With respect to [X] he stated:
“this is a boy who has been caught up in the conflict between his parents and, I think, has been running stories back and forth, but regardless of what meaning you attach to it, the fact that he would take himself off to police to make a complaint about his father is worrisome.” [1]
[1] Transcript 17 April 2013 page 12
Mr C noted that:
“there’s a number of things not working for this boy right now. Mum hasn’t been tested for a while, and I think it’s appropriate for her to see if she can do better around establishing of some stability in his life, and keeping him in school.” [2]
He also noted the importance of [X]’s relationship with his father and the need for that to be maintained. He supported an arrangement whereby [X] spends more time with his father than the two younger children because of [X]’s age and the importance of him having a male role model.
[2] Transcript 17 April 2012 page 15
It is important to note that the parties consented to an interim arrangement where the siblings were split. Mr C noted that at the time of his first report the mother was concerned about her ability to manage [X]’s behaviour full-time and the father had made some gains with [X]’s schooling.
Mr C gave his evidence in a thoughtful and sensitive manner. I accept his evidence.
The evidence of each of the parties was in some respects unsatisfactory. Each parent makes several allegations against the other. It is clear that each parent relies on statements made by [X] which are critical of the other parent to support their own negative views. They appear to fail to appreciate that they have placed [X] in an invidious position where he is highly aware of the conflict between his parents. There is no doubt that at times he, as most children do, uses this to his advantage.

Evidence of the mother

The mother presented as fairly passive in the witness box. She presented as unduly optimistic about her proposal for [X] to live with her and the younger children. Her attitude seemed to be that once he comes to live with her ‘everything will be alright’. This is unrealistic given his history of significant behavioural problems which pre-date the parties’ separation.
The two seemed unduly optimistic about [X].
Although it has been her application to have [X] live with her, for some months she appeared to have made little real efforts to make enquiries as to what further assistance she can obtain for [X]. The same can be said of the father. Neither party had turned their minds to what school [X] will attend if he is expelled.

Evidence of the mother’s supporting witnesses

Ms S, the mother’s partner gave evidence. They do not live together. She gave her evidence in a straight forward manner. She says she gives assistance to the mother when she can. I accept her evidence.
Ms H, a friend of the mother also gave evidence. Her affidavit focuses on the period from June 2012 to August 2012 when the father and [X] stayed at her home. She makes various complaints primarily about the father and the state he and [X] left her home. The father attempted to challenge her on this and asserts that he stayed there at her request to assist her with cooking as she had a new baby. Ms H has three children now aged 2, 5 and 18. She shares her home with her de facto partner. It seems unlikely that she would make such a request but nothing turns on this. Her evidence does not advance matters.

Evidence of the father

The father in particular was very critical of the mother during the course of his evidence. He was also defensive of his position. I will speak further of his evidence when discussing contested issues below.
The father did not have legal representation at the final hearing as his grant of legal aid was terminated earlier this year. Although the father clearly found presenting his own case difficult I am satisfied that he was able to get his points across. The father did not file an updated affidavit at the hearing. Without objection from the other parties, I asked the father some questions about his current living arrangements prior to him being cross-examined. His living arrangement is an important issue in this case.
Unfortunately there are inconsistencies in his evidence which lead me to find that he was an unreliable witness. I discuss specific examples of this below.

Evidence of the father’s supporting witness

Counsel for the mother and the ICL sensibly did not object to the father tendering the handwritten statement of his partner because he is unrepresented. I can place no weight on her statement as a statement of truth. It is not in affidavit form. The statement is taken from parts of Ms B’s diary. The only significant part of her statement is the incident on 17 December 2012 which is referred to as [X]’s suicide attempt. I discuss this further below.
Ms B was defensive and argumentative when she gave her evidence. She seemed to be offended when Counsel asked her about her health, although clearly this is a relevant issue with respect to her capacity to assist the father in [X]’s, [Y]’s and [Z]’s care and is an issue which is discussed in the second family report.
The father and Ms B downplayed the extent of the conflict between [X] and Ms B and between [X] and Ms B’s children.

Contested Issues

Alcohol use

The level of the father’s drinking was raised as an issue of concern. The father gave evidence that he drinks a couple of tallies of beer after work. A tallie is a large bottle of beer.
The father admitted to Mr C that he gave [X] a beer on New Year’s Eve. Mr C records at paragraph [56] of his second report that [X] told him that his father gives him up to two light beers about once a month. The father was cross-examined on this issue. Initially the father said he gave [X] one mid-strength beer under the supervision of ‘a totally sober adult’. He admitted he drinks two to three tallies of beer after work on most days. Ms B was the sober adult.
Mr Andrew cross-examined the father about this incident. Initially the father admitted to giving [X] a stubby of XXXX Gold, a mid strength beer. He equated giving his 12 year old son a stubby of beer with an Italian child drinking wine at dinner. He also admitted that this was not a spur of the moment decision but planned beforehand. The father then began to change his evidence to say that he took a big mouthful of it and [X] only took a couple of mouthfuls. It was clear to me that the father was changing his evidence as he realised he was being criticised for giving [X] alcohol. I find that the father gave [X] a stubby of beer. This was irresponsible. I cannot be satisfied that he has not given [X] alcohol on other occasions.

[X]’s schooling

In his oral evidence Mr C said he was lead to believe when he conducted the further interviews on 3 March 2013 that [X] “what was conveyed to me was that he had started high school, it was looking okay, it seemed like maybe he had turned a corner in terms of education experience.”[3]
[3] Transcript page 12.
The father cross-examined Mr C about various school records of [X]’s and tendered those documents. Mr C pointed out that [X] was having trouble at school long before the parties separated. He noted that [X]’s troubles include failing to follow instructions, aggressive behaviour towards other children, punching and foul language. Mr C expressed concern that time is running out for [X] and if his educational experience does not change soon it will have a lasting impact on his adult life. As Mr C pointed out when being cross-examined by the father that [X]’s difficulties are neither of the parents’ faults but rather is a sad situation for the family. Both parents should heed these words and concentrate on helping [X] rather than blaming each other.
This is very concerning as the subpoenaed material, tendered by the ICL and forming part of ICL Exhibit 1, tells a very different story to that of the father. The father insisted that [X]’s behaviour at school has improved since [X] as been living with him. He tendered several earlier school records in support of his argument. These documents do not assist the father’s argument. The father pointed to [X]’s improved school attendance as evidence of his improved school performance. This does not follow as his behaviour has continued to be extremely concerning.
From examining the tendered material [X]’s behaviours at school include: verbal misconduct, disruptive, failure to follow instructions, misconduct involving objects and physical misconduct. The tendered material including the material tendered by the father, does not support the father’s contentions. The records from [schools omitted]. It is clear from those records that [X]’s behaviour has been causing him difficulties for years. He has been suspended from the schools he attends on several occasions over the years for varying periods of time. The father gave evidence during cross-examination that [X] was achieving better grades. In term one, 2013 [X] was receiving C’s and D’s.
At least in 2011 [X] had regular difficulties in getting to school on time. He also had several suspensions for physical aggression and non-compliance. Whilst his attendance has improved, his behaviour has not. The father’s contention about [X] improving in his schooling since being in his care simply cannot be supported in light of the school records from the three schools [X] has attended.
It is significant that there were at least five incidents involving [X] at school this year before the family report interview on 4 March 2013. I am satisfied that the father did not mention these to Mr C and instead told Mr C that [X] was improving at school.
Most concerning of all are the incidents on 21 March 2013 which involved non-compliance but even more seriously physical assaults on another student. The subpoenaed records indicate that [X]’s behaviour is worsening not improving.
[X]’s future at [omitted] school is very uncertain. He is currently appealing a decision to expel him. Neither parent has turned their mind to what school he will attend if his appeal fails. During cross-examination the father downplayed the seriousness of [X]’s problems at school. He said that [omitted] was a stricter school than the other two. There is no evidence to support the father’s contention.

The father’s accommodation and future proposal

One of the concerning issues in this case is the instability of the father’s accommodation. The father indicated to Mr C at the interview on 6 August 2012 for his initial report that he intended to secure more independent accommodation.
The chronology with respect to the father’s accommodation is important. It only became clear through Ms Wardel’s cross-examination of the father. When the parties separated the father lived with his friend Ms D from November 2011 until March 2012. The father then went to Tasmania for a period. When he came back in May 2012 he moved back into Ms D’s place. He then stayed with Ms H from June to August 2012. He then moved into to a friend’s house

Ms R. The father was evasive about his living arrangements when be cross-examined by the mother’s counsel. The father said that he was staying at Ms R’s house during the week and staying at Ms D’s house on the weekends when he has the younger children as well as [X] staying with him. Ms R’s house was extremely overcrowded with the father, [X], the father’s partner Ms B, Ms B’s three children, Ms R and her five children. [X] has to sleep on a camp bed in the room with his father and Ms B. During cross-examination the father said it was easier to get [X] to school from Ms R’s house.
I cannot be confident that the father will find stable accommodation in the short term. He had told Mr C at his interview for the first report that he had applied for a rental accommodation in [omitted]. At the interview for the second report Mr C records that the father told him he was staying at a friend’s four bedroom house with her five children,

Ms B and her three children and [X]. This contradicts what the father said during cross-examination. I am of the view that the father was not truthful with Mr C about his living arrangements. Currently the father and Ms B are living apart. The father says they are planning to get a house and will move in together when [X] is comfortable with that. He thinks this will take no more than two months.
The chaotic and overcrowded living arrangements must have been stressful and unsettling for [X]. Given [X]’s behavioural problems it is even more important that he has stable living arrangements. As a teenager it is also important that he has his own space. The father concedes that there has been conflict between Ms B and [X] and her children. He puts this down to ordinary adjustments of blended families.
The father is now employed and starts work early in the morning at 5.00am or 5.45am and finishes work in the early afternoon at 1.30pm or 2.15pm. He is available to look after [X] after school but is not able to get [X] to school in the mornings. He works on Saturday morning twice a month. The father proposed that Ms B would get [X] to school in the mornings.
The father and Ms B both downplayed her health issues when cross-examined. The father stated during cross-examination that Ms B’s prolapsed disc, for which she had used a morphine patch, has resolved. He said “she will walk into the court room later and you will see she walks perfectly fine.”[4] I observed Ms B walk into the court room and whilst she did not have a walking aid she did walk with a limp. Ms B was very defensive about her health. The relevance of her health is that Mr Carey is relying on her to provide some assistance with [X], particularly in the mornings when he is at work.
[4] Transcript 17 April 2013 page 70.
Ms B has had hospital admissions recently. Her children are aged 16, 15 and 2. The father denied that this meant he spent less time with [X] except for an hour or so in the afternoon when he would see Ms B in hospital.
The father gave evidence that although Ms B is currently living in [omitted] and the father in [omitted] that she would be happy to drive him to work and [X] to school. Ms B’s evidence contradicted him. She gave evidence that she has just enrolled her two older children in [school omitted] because it is closer to home. I do not find that Ms B would be able to assist getting [X] to school in the morning should he remain living with his father.
As submissions were about to commence the father sought an adjournment to enable him to obtain legal advice and make written submissions. I refused his application. The father was legally represented until a few months before the hearing. He had the opportunity to obtain legal advice before the hearing. The ICL explained the nature of submissions and the relevant sections of the Act to the father the day before. In my view the adjournment was unlikely to be beneficial and would only cause further delay. I assured the father that I was comfortable that I knew what his position was. The father made oral submissions after hearing the ICL’s and the mother’s submissions.

[X]’s suicide attempt

The evidence on this issue is most concerning. This came to light because of Ms B’s handwritten statement which the father tendered in support of his case. In her handwritten statement Ms B wrote “On 16/12/12 [X] attempts suicide as he refused to accept discipline for his behaviour. Police were called and Ms D also to arrange for him to stay there.” Mr Carey said [X] rubbed a paddle pop stick on his arm. He did not witness this. Ms B came and told him. She did not witness the incident either. One of her children came and told her. She described it differently to the father. Despite it being something Ms B describes as a suicide attempt the father was not able to recall the details of the conversation he had with Ms B about this issue. The father’s response in calling the police in what his partner called a suicide attempt is very concerning.
Ms B’s evidence about this issue contradicted the father’s evidence. Under cross-examination she referred to [X] trying to sharpen a bit of plastic to cut his wrist. She says the father called the police. No police records were tendered about this incident. It seems a strange response to make to a child attempting suicide. Whether or not it was a serious attempt or a cry for help for Ms B to describe as such suggests that [X]’s actions that day were very concerning. Ms B was unable to provide much detail about what happened. She said as it happened some four months previously it was not fresh in her mind. This is hard to understand as it must have been an extremely concerning incident for her to describe it in her diary as a suicide attempt.
Neither the father nor Ms B mentioned this incident to Mr C even though the interviews for the second report took place just four months later. This omission is most concerning and hard to fathom.

The ongoing conflict

It is clear from the evidence that both parents believe what [X] tells them without question. Neither of them seems to appreciate that [X] may well be telling each of them what they want to hear. Neither of them appears to have insight into the impact the ongoing high conflict has on [X] and their other young children. Mr C states at paragraph [41] of his second report:
“I formed the view that both of the parents rely on [X] to provide information in regard to the child’s experience of the other parent. It is somewhat predictable in the case of a school age child of high conflict parents that information provided could be based on the child’s anticipation of what the child wants to hear, rather than an accurate reflection of experience. I suspect that such is the case with [X].”
I agree with Mr C’s assessment. The parents need to stop placing [X] in the middle of their conflict as this only adds to [X]’s difficulties. It is likely to be a contributing factor to his behavioural difficulties.
The mother was cross-examined about the incident which took place at [G] train station on 8 July 2012. When his mother told him he could not take his bike [X] became physically violent with her and also damaged her car. He then ran off. The mother called the police. She says she told the police she did not want him charged but hoped they would speak to him and tell him his behaviour was unacceptable. [X] apologised to her the next time she saw him the following fortnight he spent time with her on the weekend.
The mother has stable accommodation. She is renting a three bedroom house through the Queensland Housing Commission in [G].
The father arranged for [X] to see a counsellor at Headspace. This is to his credit.

Legal principles

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”).
Section 60B(1) provides that the objects of Part VII are to ensure that the best interests of the children are by:
a)Ensuring the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests;
b)Protecting them from physical or psychological harm, from being exposed to abuse, neglect or family violence;
c)Ensuring they receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that their parents fulfil their duties and meet their responsibilities concerning their care, welfare and development.
Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are 13 additional considerations are set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child from the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child's daily routine and on occasions and events that are of particular significance to the child into the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

Application of legal principles to the facts of this case

At the hearing both parents sought an order for equal shared parental responsibility for all three children. I expressed some concern about the level of conflict between the parents and their capacity to communicate with each other in a constructive way.
Both parents have involved [X] in the dispute. This is harmful to him. It is likely that the other children have also been exposed to the parental conflict. Both parents need to change the way they interact with each other, particularly in front of the children. The ICL submitted that this matter has not reached the stage where [X] should be deprived of one of his parent’s impute into major issues concerning his welfare. I find that both parents want what is best for [X].
Despite my concerns about this I do find that it is in the best interests of the children that their parents have equal shared parental responsibility.

Primary Considerations

Turning firstly to the application of the primary considerations namely:
a)The benefit to the child of having a meaningful relationship with both parents;
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied that all three children have a meaningful relationship with their parents. [X] was very much the focus on these proceedings as the parents agreed about the living arrangements for the younger two children. During submissions the father stated that he wanted more time with the younger children. The mother opposed this because of his unstable living arrangements.
I am satisfied that the children will continue to have a meaningful relationship with both their parents after this hearing.
Whilst both parents have raised issues of family violence it was not explored at the final hearing in any detail and I am unable to make findings about it. What is most concerning is [X]’s violence towards others which will hopefully be addressed by his counsellor and the further assistance his parents obtain for him.

Additional Considerations

In this matter I consider the additional considerations that are relevant to be as follows:

The Child’s Views

This consideration is set out in section 60CC(3)(a) as follows:
“(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;”
[X] will be 13 in [omitted] 2013. During the second family report interview [X] initially told Mr C that he did not have a particular preference. He referred to not getting on with Ms B or her children. He does get on well with Ms S. He also referred to the crowded conditions at his father’s home. He then expressed a preference to live with his mother as she might be in the best position to look after him. He referred to the fact that his mother has a car and a house. Here [X] is referring to stability.
Given [X]’s age and stage of development I must place significant weight on his views. This factor favours the mother’s and the ICL’s position.

Child’s Relationship with Significant Persons

This consideration is set out in section 60CC(3)(b) as follows:
“(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);”
I have already found when referring to the primary considerations that all three children have a close and attached relationship with the mother and father.
I have very little evidence about the two youngest children. Understandably the focus of the hearing was on [X]. It is clear from the evidence of both parents that at varying times [X] has had a volatile relationship with both parents. This volatility is a feature of [X]’s behaviour generally and has seen resulted in his getting into trouble at school repeatedly. It is also apparent and Mr C alluded to this, that [X] is very aware of the conflict between his parents. He has been caught in the middle of it and he has reacted against it. I have no doubt that the conflict between his parents has contributed to his poor behaviour. Both parents need to work together to avoid [X] being caught between them in the future.

Parenting and the Discharge of Parenting Responsibilities

In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in section 60CC and also sections (4) and (4A). I consider, under this heading, the following paragraphs of section 60CC(3):
“(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
…
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
Section 60CC(4) and (4A) provide as follows:
“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
Both parents have been actively involved in their children’s care. Both have attended [X]’s school and taken an interest in helping resolve his problems at school. The mother initially thought it was in the children’s interests for the two youngest children to live with her and [X] to live with his father. She says she thought it would be good for [X] to have the one on one attention from his father. Her position has now changed. She feels she is now in a better position to give [X] the home environment and stability which he needs.
I find that both parents are genuinely concerned with their children’s welfare. The father however has limited insight. It is clear that the current arrangements are not working for [X]. Living with his father has involved moving between overcrowded houses with a lot of instability. I find that this is unlikely to change in the near future.
Both parents have at time let the conflict get in the way of focussing on the responsibilities of parenthood and the need to encourage the children to have a relationship with the other parent.
The father has also shown poor judgment in giving his 12 year old son alcohol. I do not accept that it was only a few sips. [X] told Mr C that his father gives him a beer about once a month. I find that it is likely that the father has given [X] beer on more than one occasion. Some of the father’s decisions reflect poorly on his parental capacity and his attitude towards the responsibility of parenthood.

Effect of Any Changes in the Child’s Circumstances

Section 60CC(3)(d) of the Act requires the Court to consider:
“(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
Living with his mother will be a significant change in circumstances for [X]. It is accordance with his current wishes. It is also in accordance with the recommendations made by the family consultant. Something needs to change for [X] if he is to have the opportunity of obtaining a good education.
It will also be a change for the younger children to have [X] living with them.
To some extent the evidence about the instability of the father’s household and the overcrowding indicates neglect. I have no doubt that the father wants what is best for [X] but he has had a lot of issues to contend with including his employment, his relationship with Ms B and her children, the conflict between Ms B, her children and [X] and his accommodation issues. I am not satisfied that the father has the necessary supports to ensure that [X] attends school in the mornings as he is at work and Ms B is unavailable. Given [X]’s difficulties at school I think it is important that he has a parent ensuring he attends school the mornings. That parent can also have any necessary meetings with school staff at that time.
It is also of great concern that the father and Ms B were not forthcoming in providing information which the family consultant needed to properly carry out his second report. It is hard to understand how the father and Ms B could on the one hand raise the issue of [X]’s attempting suicide as being something of great concern and then on the other hand saying that as it had occurred 4 months before the second family report interviews they did not remember it. It is clear that on that day [X] was making a cry for help. As I have stated previously I am at a loss to understand how calling the police could ever be an appropriate response to this situation. The somewhat casual attitude of the father to this event in not seeing as something important to tell the family consultant is also of great concern. I formed the impression of the father that he was concerned to present his case in the best light possible at the expense of being truthful if he thought it would not assist his case. His changing evidence about the amount of alcohol he gave [X] is a classic example of this. There are other examples which I have referred to.
I accept the evidence of Mr C and place significant weight on his reports and his expanded oral evidence. His oral evidence was particularly significant because he has not been given an accurate picture by the father.
I find that the mother is able to better provide for [X]’s needs at this time. She has stable accommodation. There is no one else living in her house apart from herself and the two children. She is not working so she is able to be there for the children at all times. Clearly things are not working for [X] at the moment. Even though it will be a significant change for him, it is consistent with his views, and in my view will give him the best change of settling down. It is not certain that is change will work but it is clear that leaving the arrangements as they are is not in [X]’s best interests.

Family Violence

I have already considered and made findings about family violence in my consideration of the primary issues and therefore it is unnecessary to consider this issue again.

Orders that are least likely to result in further Litigation

It is not apparent that the proposal of the mother or father would be less likely to lead to further proceedings. I am mindful of Mr C’s evidence that given that a number of things are not working for [X] at the moment it is time to give the mother a chance to see if she can assist [X]. There is no guarantee that the change in living arrangements will be successful. I am of the view that this factor is neutral.
One option would be to make orders increasing the father’s time with the children in the event he obtains stable accommodation which is not overcrowded. The difficulty with such an order is that the parties may have differing views as to what that accommodation is. Another relevant factor will be the distance between the parents’ home. I will not make such an order but I hope that if the father does obtain stable and appropriate accommodation that the parents will be able to negotiate an increase in time.

Practical difficulty and expense of a child spending time and communicating with a parent

Section 60CC(3)(e) states:
“The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis”
Due to the father’s working hours it is not practicable for him to have care of [X] before school. I am not satisfied that his partner will be able to assist him in this regard given her own commitments to her children. The father does not have a car but gives evidence that this does not cause him difficulties. There are no other issues which are relevant to this factor.

Section 65DAA

Neither parent seeks orders for equal time arrangement. I find that it would not be in any of the children’s best interests for there to be an equal time arrangement. The youngest children have lived primarily with their mother since separation. [X] is in need of routine and stability. The father does not have appropriate accommodation and has also demonstrated some parenting deficits.
Substantial and significant time is defined at section 65DAA(3). It includes time during the week and at weekends. It enables a parent to be involved in different aspects of child’s life which includes ordinary daily routines and leisure times on the weekends.
The father will be able to collect [X] from school on alternate Fridays afternoons which will give him an opportunity to talk to [X]’s teachers. The father has also been actively involved with [X]’s school and has arranged meetings with the school when he has considered this necessary I have no doubt that he will continue to do this.
The orders I propose to make with respect to the youngest children do not enable the favour to spend substantial and significant time with the children. The children are very young and the father has had a chaotic and unstable household. These factors favour the mother’s proposal with respect to the time the father should spend with the youngest children.

Relisting

The matter was relisted for mention by telephone on the ICL’s application on 12 June 2013. The ICL wanted to bring to my attention the fact that [X] had been expelled, the parties had not agreed on an alternative school and the father had obtained accommodation. I indicated to the parties that unless someone makes a formal application to re-open their case I cannot take these matters into account. [X] being expelled was a real possibility at the hearing which I raised with the parties at the time. I expressed concern during the hearing that neither party seemed to have considered an alternative school for [X]. I notified the parties at the telephone mention that I would deliver judgment on 21 June 2013. This will give any party who wishes to make an application to reopen without causing too much delay.

Conclusion

There are many difficulties with the father’s proposal. It is not just the fact of his accommodation. Even if the father obtains stable accommodation that is only one issue. Of more concern is the father’s attitude and his limited insight. Generally the father was an unreliable witness. He was not forthright and seemed more concerned with presenting a positive picture than giving the court and the family consultant an accurate picture. He appeared genuine in his belief that [X]’s schooling has improved but that is irreconcilable with the documentary evidence. It is concerning that the father could not appreciate this.
Mr C has warned that time is running out for [X]. If his educational experience is not improved then it will have lasting consequences for him throughout his adult life.
For the reasons discussed I make orders which appear at the beginning of these reasons.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 21 June 2013

ANNEXURE A

ICL’s PROPOSED ORDERS:

That the Mother Ms March and the Father Mr Carey have equal shared parental responsibility for the major long term issues of the children [X] born [in] 2000, [Y] born [in] 2008 and [Z] born [in] 2011 (the children).
That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
That the children live with the mother.
That the children spend time with the father every second weekend,
(a)in the case of [X], from after school Friday to before school Monday;
(b)In the case of [Y] and [Z] from 9.00am Saturday to 5.00pm Sunday;
(c)These arrangements are to cease during school holiday periods and recommence on the first weekend after school resumes.
Provided that the father is able to secure time off from work, the children shall live with their parents for school holiday periods, except the Christmas school holidays, as follows:
(a)the first half of the gazetted Queensland school holidays in even numbered years with the father and in odd numbered years with the mother, and
(b)the second half of the gazetted Queensland school holidays in odd numbered years with the father and in even numbered years with the mother;
(c)for the purpose of these Orders, the school holiday time shall commence:
(i)when a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)when a parent's time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when spending time shall end at 9:00am on the day the school term recommences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
(d)That the children shall communicate with the parent they are not spending time with on school holidays each Tuesday and Thursday between 6.00 and 6.30pm with the mother to initiate the call,
That for the 2013, 2014, and 2015 Christmas school holiday periods only, and provided the father is able to secure time off from work, the children will spend from 3.00pm Friday to 3.00pm the following Friday with the mother in weeks 1,3, & 5 in the 2013 and 2015 years, and with the father in weeks 2,4, & 6, and in the 2014 year with the mother for weeks 2,4, & 6, and with the father for weeks 1,3, & 5.
From 2016 the children will spend the Christmas school holiday periods in accordance with order 5 (a), (b), and (c).
That notwithstanding any previous orders, the children shall spend time with their parents on special occasions as follows:
(a)Christmas Day
(i)From 9.00am Christmas Eve until 2.00pm Christmas Day in even numbered years with their father and in odd numbered years with their mother; and
(ii)From 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with their father and in even numbered years with their mother.
(b)Easter:
(i)From 9.00am Good Friday until 12.00 noon Easter Sunday in even numbered years with their mother and in odd numbered years with their father; and
(ii)From 12.00 noon Easter Sunday until 5.00pm Easter Monday in odd numbered years with their mother and in even numbered years with their father.
(c)On the birthday of each child with the parent they are not living with on the day:
(i)     If a school day, from after school until 7.30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With that parent to be responsible to collect and return the children.
(d)On the Mother's birthday when they are not living with the Mother on that day:
(i)     If a school day, from after school until 7:30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With the Mother to be responsible to collect and return the children.
(e)On the Father's birthday when they are not living with the Father on that day:
(i)     If a school day, from after school until 7:30pm;
(ii)    If a non-school day, from 9.00am until 2.00pm;
(iii)With the Father to be responsible to collect and return the children.

With the Father on Father's day weekend from after school Friday until 5.00pm Sunday and if that is a weekend that the Father would not ordinarily spend time with the children then the Father shall forego the next weekend of time.
With the Mother on Mother's day weekend from after school Friday until 5.00pm Sunday and if that is a weekend that the Mother would not ordinarily spend time with the children then the Mother shall forego the next weekend of time.
That the children communicate with the father as agreed between the parties and failing agreement as follows:
(a)by telephone on each Tuesday and Thursday between 6.00pm and 6.30 pm with the mother to initiate the call.
That neither parent will denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.
The parties shall keep the other informed of the children's doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent.
The parties shall keep the other informed of any daycare, school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the children's doctors, health care and other treatment providers or daycare, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence from where they currently reside.
Subject to the conditions imposed by the children's schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That the mother and father shall not consume or be affected by illicit drugs whilst the children are in their care and each parent shall ensure that no other person uses or is affected by illicit drugs in the presence or hearing of the children.
That the mother and father shall not consume alcohol to excess during the time the children are in their care and each parent shall ensure that no other person uses or is affected by alcohol in the presence or hearing of the children.

[2013] FCCA 572

21 June 2013

Key Legal Topics

Areas of Law

Family Law