McDougall and Hampstead
[2013] FCCA 390
•4 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDOUGALL & HAMPSTEAD | [2013] FCCA 390 |
| Catchwords: FAMILY LAW – Parenting – contravention application – application to vary existing parenting orders – high conflict – existing orders not in children’s best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64D, 65DAA, 65P, 70NAC, 70NAE, 70NAF(1) |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR MCDOUGALL |
| Respondent: | MS HAMPSTEAD |
| File Number: | PAC 4008 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 15 May 2013 |
| Date of Last Submission: | 15 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2013 |
REPRESENTATION
| The Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Priestley |
| Solicitors for the Respondent: | Susan Green Solicitor |
ORDERS
The amended consolidated application-contravention filed 14 March 2013 is dismissed.
The orders made 19 May 2011, amended 15 June 2011, are suspended.
Pending further order:
(a)That the mother have sole parental responsibility for the children, V born (omitted) 1998, W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2007.
(b)That the children live with the mother.
(c)Commencing from Monday 10 June 2013, that W, X, Y and Z spend time with the father in a four (4) week cycle as follows:
(i)Week 1: From after school Monday until the beginning of school Wednesday with the father to collect the children from school on Monday and deliver them to school on Wednesday.
(ii)Week 3: From after school Friday until the beginning of school Monday with the father to collect the children from school on Friday and to deliver them to school on Monday.
(d)That V be permitted to spend time with the father at her request.
(e)During the New South Wales gazetted short school holidays W, X, Y and Z spend time with the father as follow:
(i)In even years, for five (5) consecutive days from 9.00am on the first Monday of the holidays until 4.00pm on the first Friday of the holidays;
(ii)In odd years for five (5) consecutive days from 9.00am on the second Monday of the holidays until 4.00pm on the second Friday of the holidays.
(iii)That V be permitted to spend time with the father at her request.
(f)Each party will refrain from discussing these proceedings with the children, with the exception of explaining, in an appropriate manner, any Court Orders that directly affect them.
(g)That the mother be entitled to have the children attend counselling with a qualified psychologist and in particular for Y and V with Ms H.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
The matter be adjourned to 15 July 2013 at 11:30am in Coffs Harbour.
IT IS NOTED that publication of this judgment under the pseudonym McDougall & Hampstead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 4008 of 2011
| MR MCDOUGALL |
Applicant
And
| MS HAMPSTEAD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about five (5) children, V aged 14, W 11, X 10, Y 8 and Z 6. The children’s father is the applicant in a contravention application. He is 41 years old, lives in (omitted), and describes himself as a currently unemployed (omitted). The respondent to the contravention application, and the applicant in an application to vary the children’s orders, is the mother. She is 41 years old, lives in (omitted) and describes herself as a (omitted). There is a long history of litigation between the parents which will be outlined below. The present reasons for judgment arise out of the hearing of the father’s contravention application, an amended consolidated version of which was filed on 14 March 2013, as well as a consideration on an interim basis of the mother’s application filed 25 March 2013 to vary the same orders that the father seeks to have enforced.
Background
The current parenting order was made by Federal Magistrate Jarrett (as he then was) and is dated 19 May 2011, but was amended pursuant to the slip rule on 15 June 2011. The order provides for equal shared parental responsibility, for the children to live with the mother, but also to live with the father during the school term on a four-weekly roster. The relevant order in this regard is order 3(a) and (b) which states:
The children live with the father as follows:
(a)During the school term on a four weekly roster as follows:
(i)In week 1 from after school or pre-school Monday to the commencement of school or pre-school Thursday for all five children;
(ii)In week 2 from after school or pre-school Monday to the commencement of school or pre-school on Wednesday for the children X, Y and Z;
(iii)In week 3 from after school or pre-school Friday to the commencement of school or pre-school Monday of week 4 for all five children;
(iv)In week 4 from after school pre-school Friday to 12.00 noon Saturday for the children X, Y and Z;
(v)If the children V and W wish to spend time with the father in accordance with (ii) and (iv) above the mother shall facilitate and encourage them to do so.
The rest of the order deals with special days and school holidays. The children live with each parent for half of each school holiday, but during the Christmas school holidays this occurs on a week about basis.
There is no dispute that there is a high level of conflict between the parents, low levels of trust and that communication, when it occurs, is highly problematic. Moreover, since the orders have been made, the children are now two (2) years older. This, in itself, may justify revisiting the appropriateness of the existing parenting orders. In any event, both parents agreed that no order for contact should be made in relation to V who is now 14 years old except to respect her views about contact. Indeed, on the evidence of either parent, V’s relationship with her father has broken down. Even the father agrees, however, that there is benefit in ongoing counselling between V and himself, as to their relationship. The mother does not dispute that may, of necessity, involve her.
The Contravention Application
Pursuant to directions made by Federal Magistrate Kemp (as he then was) the father was directed to file an amended consolidated application limited to five (5) alleged contraventions. Four (4) of those alleged contraventions, asserted to have occurred on 29 November 2011, 12 December 2011, 10 February 2012 and 17 October 2012, related to V. The fifth contravention, asserted to have occurred on 16 August 2012, related to the child, Y.
In respect of each allegation the mother denied that she had contravened the order in question. In closing submissions, however, Mr Priestly, who appeared on behalf of the mother, acknowledged that if the Court was against his client as regards denial of contravention, then, at least as regards the allegations in relation to V, the mother would assert that there was reasonable excuse.
The Mother’s Variation Application
On 25 March 2013 the mother filed an application to vary the existing parenting orders. She seeks an order, on an interim basis, for sole parental responsibility, for the children to live with her and for W, X, Y and Z to spend time with the father on a four-weekly cycle as follows:-
That W, X, Y and Z spend time with the father in weeks one and three of a four week cycle as follows:
(a)Week 1: From after school Monday until the beginning of school Wednesday with the father to collect the children from school on Monday and deliver them to school on Wednesday.
(b)Week 3: From after school Friday until Sunday with the father to collect the children from school and to deliver them 50metres from the mother’s home at the conclusion of the visit.
In relation to the short, that is, the mid-year school holidays, the mother proposed that the children spend time with the father for five (5) consecutive days from Monday to Friday. In effect, the mother was proposing a substantial reduction in the father’s time as well as a simplification of the parenting orders as well as few changeovers.
Despite having the mother’s application to vary the orders for several months, the father acknowledged that he did not prepare a response or any material in that regard. It is abundantly clear that he opposes any change to the existing orders, except as regards V. In circumstances where the father had ample notice of the mother’s application, and subject to dealing with his contravention application, and further subject, of course, to the evidence, there is no reason not to deal with the mother’s application to vary the parenting orders.
The Evidence
The father read the following affidavits in his case:
a)Affidavit affirmed 13 March 2013, filed on that date;
b)Affidavit affirmed 15 February 2013, filed on that date;
c)Affidavit affirmed 1 September 2012, filed 10 September 2012.
The mother relied on the following affidavits:
a)Affidavit sworn 18 March 2013, filed 25 March 2013;
b)Affidavit sworn 7 May 2013, filed 9 May 2013;
c)Affidavit sworn 10 October 2013, filed on that date.
Both the father and mother gave evidence and were cross-examined.
The mother was represented by Mr Priestley of counsel. The father represented himself. He is clearly an intelligent, articulate and determined man.
Applicable Law
The father’s contravention application is commenced pursuant to Division 13A of Part VII of the Family Law Act1975 (“the Act”). Section 70NAC of the Act sets out what it means to contravene an order:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
This is an important definition in the present case as the mother’s case is that even though V did not spend time with her father in accordance with the orders she (the mother) did not contravene the order. Insofar as the mother’s case, even in the alternative, is that there was a reasonable excuse for contravening the order, s.70NAE of the Act discusses the meaning of reasonable excuse:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The standard of proof in contravention proceedings is on the balance of probabilities (s.70NAF(1) of the Act). There is no question that the Court may vary a parenting order in the course of, or as a result of, contravention proceedings. In this regard s.70NBA(1), states:
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, s.65N of the Act may be relevant. It states:
General obligations created by parenting order that deals with whom a child spends time with
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
Division 13A of Part VII empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F). There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F. It is also clear beyond doubt that the Court has power to vary the primary parenting order irrespective of which subdivision applies.
In relation to the application to vary the parenting orders, Part VII of the Act applies.
In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B of the Act:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA of the Act provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)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.
Because s.65DAA of the Act refers to the best interests of the child, I must then go back to consider s.60CC of the Act which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(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;
(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);
(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;
(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;
(e)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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
[8] Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
[13] 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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Concessions Made
Before commencing the evidence the respondent mother quite properly conceded, through her counsel, a number of facts. Thus, she conceded personal service on her of the contravention application and supporting affidavits. She conceded the fact and terms of the order allegedly contravened. She conceded that the order was in force at the time of the alleged contravention. She acknowledged that she knew of the terms of the order at the time of the alleged contravention. Insofar as the contravention relates to V, she conceded that V did not, in fact, spend time with her father on the dates in question. The mother did not concede, however, that she did something proscribed by the orders, or failed to do something required by the orders.
The Contravention Application
The four (4) alleged contraventions relating to V are said to involve breaches of orders 3(a)(i) and (12) which state:
The children live with the father as follows:
(a)During the school term on a four weekly roster as follows:
(i)In week 1 from after school or pre-school Monday to the commencement of school or pre-school Thursday for all five children;
Both parents agree not to use the children to make any parenting arrangements at any time.
The alleged contravention is that:
“On 29 November 2011, 12 December 2011, 10 February 2012 and 17 October 2012 at 3.15pm at Toormina the respondent without reasonable excuse refused to allow V to spend time with me [applicant]. The respondent breached Order 12 in requesting I [applicant] arrange V’s time with me [applicant], directly with her.”
Order 3(a)(i) provides that the children live with the father “from after school” Monday, insofar as it applies to V. The evidence of the parties is that whilst this order was hardly ever complied with after it was made, when it was complied with V would catch the bus from school and then travel to her father’s home. The mother’s case was, in effect, she had done everything she could to comply with this order once she had duly prepared V for a contact visit with her father, before she went to school on the day when she was supposed to travel to her father’s home. Indeed, her evidence in cross-examination, which emphasised the evidence in her affidavits, was that she did her utmost to “make it happen”. She “told her to go”. She would pack her bag for the visit and prepare her in that regard.
The Court accepts the mother’s evidence in this regard. Despite being cross-examined by her former husband, at times in a quite robust manner, she gave evidence in a candid, straightforward manner, always responding to the questions asked. Notwithstanding this, could it be said that the mother complied with the order? Section 65N of the Act proscribes the mother from hindering or preventing V from spending time with her father, or interfering with her benefiting from spending time with her father. It could not be said that the mother’s actions constitute a breach of s.65N of the Act. She did what she could to encourage and facilitate V spending time with her father.
As she was not there at the time that V finished school on Monday afternoons, nor was she required to be there, her obligation to facilitate contact ended at the time that V left for school on Monday mornings, unless there was evidence of her hindering, interfering, or discouraging V once she left the school. There was no such evidence. One must not forget the clear context of this case. V was clearly expressing views that were, at the very least, reluctant about spending time with her father, or perhaps more realistically, outright resisting any contact with her father. This was an acknowledged factor even in the orders amended 15 June 2011, order 3(b) of which states:
If the children V and W wish to spend time with the father in accordance with 2 and 4 above the mother shall facilitate and encourage them to do so.
This order related to additional contact for the older girls, which was clearly subject to their views in that regard. The father’s evidence was that no more than once did V exercise that additional time with him. There is no evidence to sustain a finding that the mother has breached order 3(a)(i), in the circumstances of this case.
However, the father asserts that the mother also breached order (12). This arises in the following circumstances. Both the parents gave evidence that when V would not attend the father’s home the father would communicate with the mother, generally by text, either in effect wanting to know whether V was coming, or what the mother was going to do about the fact that she hadn’t come. In cross-examination the mother quite frankly conceded that on those days when V declined to go to her father’s home, she knew where V was at all relevant times. She explained that she didn’t communicate with the father because of the very nature of the communication between them, which was clearly difficult (to say the least). However, the mother conceded that she did tell the father, several times, that he should, in effect, contact V direct to speak with her, and to make arrangements to collect her. The father consistently refused to do this arguing that it would be a breach of order (12). Moreover, the father’s contention is that the mother breached order (12) by urging him to contact V directly.
The Court finds that order (12) does not have the meaning attributed to it by the father, in the above context. In the circumstances set out above, neither the mother nor the father was using V to make a parenting arrangement. The parenting arrangement was quite clearly set out in the order. What in fact occurred was that there was a problem in implementing the parenting arrangements and the mother, having tried to facilitate V spending time with the father, then suggested he telephone her to make arrangements to collect her. She also believed that if the father rang V, it would communicate to V that she was wanted by her father.
In the circumstances of this case, the mother’s suggestion to the father was both reasonable and appropriate, and the father’s refusal to do so, relying on order (12), was disingenuous. The mother’s contention was that the father didn’t ring V because he knew what she would say, ie, that she didn’t want to spend time with him. That V did not spend time with her father is a self-evident fact on the evidence before the Court. The mother’s contention about the father’s belief is probably correct. In any event, in no way can the facts of this case be construed to be a breach of order (12).
Even though the contraventions relating to V are not established, and even though neither parent seeks orders in relation to the father spending time with V, in the context of considering a wholesale revision of the existing orders it is significant to note how inadequately both parents dealt with this issue. Whilst the mother was faced with the bi-dimensional problem of an assertive father on the one hand, and an equally assertive daughter on the other, she could have tried harder to communicate with the father to break the impasse that existed between V and her father.
The Court has no doubt, however, on the evidence before it, that the mother was worn down by the constant conflict with the father, and the toxic communication flow between them. As for the father, there is so much more he could have done but, clearly, and for his own reasons, chose not to do so. His response was a legal one – to bring contravention proceedings, even though he ultimately conceded that an order for V to spend time was no longer realistic. One wonders what harm it would have caused to simply ring V and try to re-establish some form of communication with her, rather than act as he did?
The Court records that even if it is wrong in finding that there was no contravention of orders 3(a)(i) and (12), the Court would, nonetheless, find a reasonable excuse established for the purposes of s.70NAE of the Act and, specifically, that the mother ought to be excused in respect of the contravention because of the strongly, clearly articulated views of V not to spend time with her father.
The remaining alleged contravention relates to Y, and is asserted to be a breach of order (1), the order for equal shared parental responsibility. The father says that this breach occurred when the mother took Y, known as Y, to the family doctor, who then referred her to a specialist to explore a diagnosis of ADHD.
The evidence suggests that the mother took Y to see Dr W at the (omitted) Medical Centre on 16 August 2012 and Dr W referred Y to Dr N, a specialist. The letter of referral is the Annexure “G” to the father’s affidavit of 15 March 2013. The relevant part of the letter states:
“Many thanks for seeing Y, this 7 yo girl presented with mother, concerned about Y’s behaviour. Y tends to get angry very easily with aggressive behaviour, eg, kicking and hitting. She likes to remain ‘busy’, eg, going to friends, going to sports, but does not like to stay at home. Mother is concerned that Y’s behaviour has had already strongly affected other family members. Thank you for r/v her. ? ADHD.
The letter itself, certainly corroborated by the mother’s evidence, demonstrates that the mother didn’t take Y to see the doctor because she believed she had ADHD. Indeed, the letter makes clear that Dr W raised this as a tentative possibility in his letter to Dr N.
In any event, the evidence is that after 16 August 2012, and well before Y was due to see Dr N, the father stopped this from occurring. It is also clear that the mother told the father about the referral by text message. It is quite possible that Y, in fact, told her father, before the mother did, but that does not detract from the fact that the mother did notify the father well before the appointment was due to take place. The father’s evidence about this issue in cross-examination was largely unresponsive (an observation that may be made generally about all of the father’s evidence in cross-examination).
In any event, and stopping at this stage of the evidence, it is impossible to see how the mother may have acted contrary to any obligation on her as a parent who shared parental responsibility in relation to Y. She told the father of the referral well before the appointment. There is no evidence to suggest that the mother believed Y had ADHD when she went to see Dr W. Clearly, she was concerned about Y’s behaviour. It could not seriously be contended that, in those circumstances, the mother was obliged to consult with the father before she took Y to the doctor. This could not be considered anything other than a matter for day-to-day parental responsibility. No contravention of order 1 is established on the facts of this case.
This evidence informs decision-making about whether or not, and if so to what extent, to vary the existing orders. Exhibit “A1” is the letter the father sent to Dr N on 3 September 2012. He concludes his email to Dr N by saying: “I do not agree to any further treatment of Y in relation to ADHD. I will use this email as evidence if in case it is needed in the future.” In the second paragraph of the letter, the father professed his “shock” and that he felt “disgusted” at the referral sent to Dr N by Dr W. The context suggests his shock and disgust derived from the fact that he was not consulted as a parent having equal shared parental responsibility. In the third paragraph, the father, in a rare moment of insight, referred to the absence of any mention in the referral to the “separation that has been especially horrible for the children.” He then went on to make allegations against the mother’s partner that he was assaulting Y, and the Department of Community Services (“DoCS”) investigation.
In the fourth paragraph to the letter, he explains that he has “a fantastic relationship” with Y and that he struggles to take Y back to her mother, presumably because Y wants to stay. In the fifth paragraph of the letter he says: “This to me is looking like itself a form of abuse to Y drugging her into submission.” One can only surmise that the father had convinced himself that Dr N was going to prescribe medication for Y that would drug her “into submission.”
There are many disturbing features about the father’s actions in the context of Y’s attendance on Dr W, and referral to Dr N. The most pressing issue is that Y’s behavioural problems at home have not been dealt with and the father’s interference has prevented Dr N from even seeing Y, let alone diagnosing her. This is plainly unsatisfactory. If Y does have ADHD this needs to be dealt with. The father may well have convinced himself that the only treatment for Y was to drug her. That is far from the case. Indeed, a Department of Community Services record of 6 March 2013 records that the father was told that play therapy may be another alternative for Y. Indeed, this record of interview, contained in Exhibit “R2”, provides further insight into the father’s attitude. The file note states, in part:
“Mr McDougall described a situation where Y would whinge about eating cereal at breakfast time, his response was to give her a piece of fruit and a milk drink. Mr McDougall described other situations where Y would become agitated and cranky when she had to go to bed. Mr McDougall said many times he does not have a problem with Y at his house, Ms Hampstead is the only one who has a problem with her. Mr McDougall said Y runs away from Ms Hampstead and has tantrums when she takes her to school. Mr McDougall said he is very annoyed that Ms Hampstead took Y to the doctor to get a referral without asking him first.
Mr McDougall started to become elevated in his speech and told Ms H that she could not see his children under any circumstance because he had not given permission for the children to be seen.
CW spoke to Mr McDougall about the benefits of counselling for children that have suffered trauma from parents separating and in particular if they have counselling as earliest as possible. Mr McDougall continued to state “Ms Hampstead did not talk to me about an appointment” or words to that effect.
Ms H spoke to Mr McDougall in a respectful manner stating that CW had recognised certain signs with Y in particular and whilst CW is not a psychologist has the ability to recognise behaviours where children may need counselling. Ms H told Mr McDougall that the behaviours that Mr McDougall had described of Y were concerning, she said play therapy works well with children of this age.
At this point Mr McDougall said words to the effect “I have had enough” and walked out of the meeting saying I do not want you to see my children and left the room.”
A number of things emerge from this business record. The first is the inconsistency between the father’s email to Dr N in which he says “I never have a problem with Y” and what he told the DoCS officer about the problems he had with Y eating breakfast and becoming agitated. The next issue is the father’s behaviour during this interview, with his speech becoming elevated, and then walking out of the meeting. This behaviour is entirely consistent with the mother’s description of the father and particularly that there is “no negotiating with you”. The third issue is that the father appears to resist any professional input so far as the children are concerned, feeling immediately threatened by the same. His response to the DoCS officer and to Dr N seems to have this in common – a feeling that he knows best, and that no other professional could offer anything of assistance.
The next issue, and another equally significant one, is that departmental officers appear to have concern that certainly Y, and possibly the other children, have suffered trauma as a result of the separation, and that counselling may be needed. Despite telling Dr N that “the separation has been especially horrible for the children”, when the DoCS officer suggested counselling, the father’s response was to walk out.
All of this evidence is, of course, relevant to whether, and if so how, the existing parenting orders should be changed.
A Variation to the Parenting Orders
In the interim orders sought by the mother in her application filed 25 March 2013 she firstly proposes sole parental responsibility. The mother makes out a compelling case for an order for sole parental responsibility, even on an interim basis. Dr W has referred Y to Dr N on the basis that she may have ADHD. The father trenchantly opposes this. His complaint is, at least superficially, that he was not consulted, as if his rights somehow should be elevated over the need for Y to be properly diagnosed and treated. In any event, the DoCS interview of 6 March 2013 suggests that even the father is having problems with Y, and the departmental officers are concerned about how Y is coping with the separation.
The father was quite disinterested in doing anything about this. The father has limited insight in this regard. On the one hand, he is able to acknowledge to Dr N that the separation “has been especially horrible for the children”. On the other hand, he resolutely opposes having anything done about it, at least insofar as it relate to Y. By contrast, the mother presents as being not only concerned about the problem, but willing to act on it. It is no answer to say that the father would, if consulted about these issues, eventually come around or that an order for sole parental responsibility goes too far in circumstances where it could be limited just to medical issues.
Regrettably, the impression formed from the evidence, and bearing in mind that this is an interim application to vary parenting orders, is that the issue about Y’s treatment is the tip of the iceberg. There is a pervasive issue of dysfunctional and toxic communication between the parents, seemingly fuelled by the father’s insistence on his own rights, self-focused and manifestly limited insight into the children’s needs. An order for sole parental responsibility is needed, not just in relation to Y, but in relation to the other children as well. Indeed, it would be artificial in the extreme to make separate orders for the other children.
The mother proposes a substantial reduction in the father’s time with the children. Specifically, she proposes that order (3):
That W, X, Y and Z spend time with the father in weeks one and three of a four week cycle as follows:
(a)Week 1: From after school Monday until the beginning of school Wednesday with the father to collect the children from school on Monday and deliver them to school on Wednesday.
(b)Week 3: From after school Friday until Sunday with the father to collect the children from school and to deliver them 50metres from the mother’s home at the conclusion of the visit.
This would mean that the father spends some four (4) days with the children in a four (4) week cycle. The current order would provide for nine (9) days in a four (4) week cycle. This is a significant reduction in the father’s time but, the mother contends, it reduces the time and the opportunities for conflict and hopefully reduces the children’s exposure to conflict.
The mother’s affidavit sworn 18 March 2013, in support of her application to vary the parenting orders, is quite comprehensive. As indicated earlier in these reasons, the father had the opportunity to respond but did not avail himself of that opportunity. She gives a detailed, vivid history of the relationship, the conflict, the history of legal proceedings and its impact on all of the children and herself. The mother gives the impression that the final orders made by Federal Magistrate Jarrett (as he then was) amended 15 June 2011 may have been by consent. It is not clear whether that is, in fact, the case. On the mother’s evidence it is doubtful whether she would have consented to these orders.
What is apparent is that the orders never worked insofar as V is concerned. Moreover, the mother asserts, and the father did not take the opportunity to deny, that since the orders in question there have been multiple difficulties with implementing the parenting arrangement mainly associated with the father’s aggression, harassment and abuse “to almost everyone who tries to help me” (paragraph 50). Indeed, quite apart from the mother’s assertion in her affidavit, the father’s interview with the DoCS officer, and his correspondence with Dr N, are clearly consistent with the mother’s description.
The mother expresses concern in her affidavit about the father’s failure to take the children to their extra-curricula activities, his inappropriate involvement with DoCS, his inability to accept the outcome of their investigations and the text message and email war that he perpetrates upon her and those who represent her. She makes allegations about what the children report their father says which, if accurate, would certainly be embarrassing for the children, but are probably highly inappropriate as well.
The situation portrayed by the mother in her evidence, unchallenged by the father either in cross-examination, or in his own evidence, suggests the children are under tremendous strain as a result of a parenting order that is not meeting their needs in the context of a high conflict separation where the father seems to struggle at times in meeting the children’s needs and demonstrably lacks insight.
Curiously, the best evidence about the father’s struggle to cope is in his own evidence. The Annexure “B” to his affidavit of 13 March 2013 is a copy of the psychological assessment of Ms J, his psychologist. This report is dated September 2011. Ms J explains in her report that the father was “referred for adjustment disorder with anxiety and relationship breakdown”. She explains that her sessions with the father “have included anger management, CBT (cognitive behavioural therapy), motivational interviewing and interpersonal therapy”. The personality assessment inventory test undertaken identified that the father was suffering depression and stress. Ms J’s report of a Father’s Day incident between the father and V is important:
On the Father’s Day incident Mr McDougall had taken the children to the beach and towards the end of the day V was going to walk home to her mother’s house. She (V) did not have a change of clothes, so Mr McDougall said that he should take her home. V “got on her high horse and wanted to walk”. When it was time to leave V was “adamant to stay right or wrong… so I picked up her mobile phone … she punched me in the face and grabbed the phone … she looked angry … hated me … then shock … not remorse … the look in her eyes was full of hate … she stormed off … I said I was very disappointed”. Mr McDougall was left “feeling horrible; he does not know what to do.”
There can be no doubt that the Father’s Day incident was a low point in terms of the father’s relationship with V and one that he struggled to cope with. He clearly wanted to have counselling with V.
The mother gives evidence of an incident in February 2012 when V and the mother were at the (omitted) shopping centre in (omitted). She alleges that the father was following them for sometime, that he approached V yelling and swearing and said to her words to the effect; “You shit on your nanna. You have to come with me.” The mother deposes that she thought the father was referring to V’s refusal to spend time with the paternal grandmother over the Christmas period when she was with the father. The mother asserts; “Mr McDougall grabbed V by the arm and tried to drag her away. V was physically shaking.” (Paragraph 44, affidavit of 18 March 2013).
Shopping centre security became involved and later the police became involved. As a result of this V was, apparently, asked to write out a list of why she wants to go to her father and why she does not. This list is the Annexure “A” to the mother’s affidavit of the 18 March 2013. The appropriateness, or otherwise, of forcing V to make this list is something that can be considered in another context. In any event, the father’s perspective of this event is quite a different one. At paragraph 9 of his affidavit sworn 1 September 2012 he explains that he had taken the younger children to the plaza for shopping, noticed V with a group of her friends, that he did approach V to say hello “but was set upon by the respondent’s friends”. He asserts that it was “terrifying for the children and me to be chased from a shopping centre was so shocking. The plaza reported to the NSW police the behaviour of the respondent friends.” In his email to the mother’s solicitor (one of scores) on 2 March 2012 he refers to the incident as one where “the children and I and my partner where chase from the shopping centre by your client an 2 of her friends.”
There are, unsurprisingly, police records of this incident at (omitted) Plaza. The police entry for 11 February 2012 presents a record that is consistent with that contained in the mother’s affidavit, and quite inconsistent with what the father asserts. In part, the police entry states as follows, bearing in mind that the person described as the witness is the mother, the POI is the father and the victim is V:
About 11am, the victim and witness with friends ... were shopping at the (omitted) Plaza. The witness noticed the POI at the location with her children. As she passed them she said hello to her children, although, although due to AVO orders for her protection did not stop and speak to her children. The victim, witness and friends walked to (omitted) . Whilst inside the store, the victim and witness were aware that the POI and the other children were inside the location. The POI left the store and waited outside for his other children and left prior to the victim and witness. Soon after this the victim and witness were at the food court. They were standing near the access to the toilets with a group of friend. The witness had her back to the victim and was talking to friends. The POI approached the victim V and demanded to know why she had not gone for her access visit. The child stated that she did not want to. At the point the victim thought she was going to get into trouble from the POI, so she began to walk away to avoid an argument. The POI reached out and took the victim by the arm preventing her from walking away. The victim got scared and she ran from the POI. The witness yelled at the victim to run into the toilet which she did. As a result of this the POI ended up in a confrontation with (redacted) (friend of the witness and victim). The POI allegedly took photos of (redacted) and her daughter and was abusive towards them.
There is absolutely nothing in this record to corroborate the father’s assertion that he was somehow chased out of the shopping centre. One can only try to imagine how V experienced this incident. It was in a public place. She was with friends. The father approached her attempting to engage in what can only be described as inappropriate conversation, given the context. V began to walk away to avoid an argument. Her father “reached out and took” her by the arm “preventing her from walking away.” V got scared.
The police entry corroborates the mother’s version of this event. Even if it did not, the Court would prefer the mother’s evidence over the father who was, for the most part in cross-examination, unresponsive, uncooperative and argumentative.
In any event, the mother gives evidence of her attempts to arrange for the father and V to have counselling at (omitted), a matter which the father clearly himself wanted. She gives this evidence at paragraphs 46 and 47 of her affidavit. V would not go. Perhaps this is not surprising given the incident that took place on the beach and the more recent incident that took place at the shopping plaza. The father externalises all responsibility for the breakdown in his relationship with V. Clearly, from his perspective, it is the mother’s fault she is not facilitating V’s relationship with him. The evidence indicates otherwise.
In December 2012 the father was charged with breaching the AVO as a result of the volume of text messages that he sent to her. This event corroborates the mother’s assertions, and concerns, about the father’s abusive, harassing and toxic communication with her. Indeed, the father produces a more than ample sample of this type of communication annexed to his affidavit of 1 December 2012. On 25 June 2012 he writes to the mother’s solicitor at the time, Ms G, saying that “you got no guts.” The demeaning, almost bizarre, allegations that the father makes against the mother in this email provides an insight into his appalling attitude towards her. He concludes the email by saying “your client needs help…”. Again, this is an example of the father externalising responsibility for the problems he has in his relationship with V, and quite frankly the problems he obviously has within himself having regard to his own psychologist report. His correspondence with the Independent Children’s Lawyer is no better.
There is no doubt on all the evidence before the Court that these children are caught in parental conflict that is primarily instigated, and maintained, by the father who seems quite incapable of understanding his role in all of this, his responsibility in managing the situation appropriately and the distress this causes the children.
The present application is an interim application and is being brought without the benefit of a child dispute conference or a family report. Nonetheless, unlike many interim applications in parenting matters, there is ample evidence from both parents, there are subpoenaed documents that have been tendered in evidence and the Court has had the opportunity to see both the mother and father in the witness box, albeit in the context of contravention proceedings. The considerations set out in s.60CC of the Act need to be applied.
Insofar as either parent asserts that any child has expressed a view, with the exception of V, no weight can be put on that evidence. The Court, nonetheless, acknowledges that the views of these children are an important consideration. An Independent Children’s Lawyer will be re-appointed to help deal with that issue, as well as to assist in the management of what will be a difficult case.
It is difficult to be definitive about the nature of the children’s relationship with each parent. The impression gained from all the evidence is that the children have a good relationship with their mother, and appear to enjoy spending time with their father, but his accounts of what happens when they are with him are unreliable. He was not an impressive witness. As some of the evidence referred to earlier in these reasons demonstrates, he has limited insight about the children such that any history he provides of his relationship with them is unreliable.
The father argues that the mother has not facilitated and encouraged his relationship with the children, particularly V, but even on the evidence presently available to the Court, it is obvious that the father has done things, and failed to do things, that have contributed to his estrangement with V, but he lacks the insight to understand this. Apart from V, the fact is the children have spent time with him in accordance with the orders, despite all the difficulties created by the father’s persistent, voluminous, and toxic communication with the mother and those who represent her, and the strain this must have placed on her.
A significant issue that arises as a result of the mother’s application is the impact on change in the children’s circumstances, particularly the likely effect of separation from their father. The mother’s proposal is a significant reduction in their time with the father. On all the evidence before the Court, however, any likely effect on the children will be positive, rather than negative. The mother’s concerns about the father are established, for interim purposes, and thus reducing their time with the father and conversely spending more time with the mother, means, hopefully, less exposure to conflict, and more time in a stable environment. Despite what the father says, there is absolutely no evidence to suggest that there is any risk of harm to the children whilst in the mother’s household.
There are no issues of practical difficulty in expense associated with spending time with the children. The limited evidence available, nonetheless, does raise issues about the father’s capacity to provide for the needs of the children, especially their emotional needs. The evidence also raises issues about his attitude towards the children and to his understanding of his responsibilities as a parent. His intransigence about Y’s treatment, and his behaviour towards V suggests that the father not only lacks insight about the impact of his actions on his children, but possibly continues to struggle from the adjustment disorder with anxiety that he was thought to have suffered in 2011, as referred to by his own psychologist. These issues need to be explored further and, indeed, this may well be a strong case for a Part 15 expert’s report from someone with psychiatric qualification.
The father’s behaviour towards the mother in the past, and, arguably, on an ongoing basis, probably falls within the amended definition of family violence.
All of these factors help support the conclusion reached above about sole parental responsibility and also point towards making an order in terms of that sought by the mother. The one concern the Court has about the mother’s proposal is that in week three (3) the children are to be returned to her at 4.00pm Sunday. This is problematic. Even on the basis proposed by the mother, that is, that the father drops them off 50 metres from the mother’s home when returning the children on Sunday – there is scope for difficulty in implementing the orders. It would be better, in all the circumstances, if the children were returned to school and, indeed, the father might feel a greater obligation towards returning the children to school on time than he might, otherwise, feel about returning them to the mother’s home on Sunday. Accordingly, order 3(b) proposed by the mother will state that the children are returned to school on Monday morning.
As indicated above, it is appropriate to order the children to be separately represented and the Independent Children’s Lawyer is asked to seriously consider engaging the services of a psychiatric expert pursuant to Part 15 of the Rules.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 4 June 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness