McGrath and Bean
[2016] FCCA 2624
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGRATH & BEAN | [2016] FCCA 2624 |
| Catchwords: FAMILY LAW – Parenting – two young children – best interests – short and long term risk of harm to children arising out of mother’s use of alcohol. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 68B, 117 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422; (2006) FLC 93-286 Jones & Dunkel (1959) 101 CLR 298 Slater & Light [2011] FamCAFC 1 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MS MCGRATH |
| Respondent: | MR BEAN |
| File Number: | PAC 1254 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 10 and 11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Appearing for the Applicant: | Ms Nagle |
| Solicitors for the Applicant: | O'Connell Solicitors |
| Counsel for the Respondent: | Mr Othen |
| Solicitors for the Respondent: | Dignan & Hanrahan Solicitors & Attorneys |
ORDERS
The parties have equal shared parental responsibility for the children X born (omitted) 2012 and Y born (omitted) 2014.
That the children live with the father.
That the children spend time with the mother on the following basis:
(a)Each alternate weekend from 5pm Friday until 5pm Sunday (with such weekends to correspond with weekends when the father’s partner’s children are not spending time with their father);
(b)Each alternate week from the conclusion of school Wednesday until the commencement of school Friday commencing in the week following time pursuant to sub-paragraph (a) above;
(c)During one half of each New South Wales school holiday period as agreed or following agreement during the first half of the same in even numbered years and the second half of the same in odd numbered years; and
(d)Otherwise as agreed.
That the mother spend time with the children (if not already in her care) as follows:
(a)On Mother’s day from 9am to 5pm;
(b)On the children’s birthdays as agreed between the parties;
(c)For two weeks over the Christmas period including Christmas Day and Boxing Day in odd numbered years; and
(d)For two weeks over the gazetted school holidays by agreement and failing agreement the first two weeks in December in even numbered years.
That the father spend time with the children (if not already in his care) as follows:
(a)On Father’s Day from 9am to 5pm;
(b)On the children’s birthdays as agreed between the parties;
(c)For two weeks over the Christmas period including Christmas Day and Boxing Day in even numbered years;
(d)For two weeks over the gazetted school holidays by agreement and failing agreement the first two weeks in December in odd numbered years; and
(e)At any other time by agreement.
That for the purpose of orders herein the party with whom the children are to spend time shall cause them to be collected from the residence of the party at commencement of such period unless the children are being collected from or returned to school.
That each party be entitled to communicate with the children by telephone on a reasonable basis whilst in the care of the other party.
That each party do all acts and things and sign and execute all documents necessary to authorise any medical practitioner upon whom the children attend to provide all requested information in respect to the children to the other party and to discuss all issues relating to the wellbeing of the children with the other party.
That each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of correspondence, newsletters or other material produced by the school and distributed to parents or relating to the children and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
That each party shall be entitled to attend all school events to which parents are invited to attend such as parent teacher interviews, school concerts, assemblies, prize givings and the like.
That each party shall keep the other advised as to significant medical, educational or other issues in respect to the children.
That each party be and is hereby restrained from denigrating the other party or any member of the other party’s family to or in the presence of the children and shall not allow any other person to engage in such behaviour to or in the presence of the children.
That each party shall advise the other party and keep the other party advised as to their current residential address and contact telephone numbers and advise the other party of any changes to these details within 24 hours of such change occurring.
Pursuant to s68B of the Family Law Act1975 that the mother be restrained by injunction from consuming alcohol for 12 hours prior to and for the duration of the time the children are spending with her.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Relationships Australia, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the “Keeping Kids in Mind” program offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
The child Y (female) born (omitted) 2014 shall be henceforth known as Y.
The mother, Ms McGrath is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Y born (omitted) 2014 be now registered as Y.
Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 16 herein.
The Court directs that the Applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
All outstanding issues from the list of cases awaiting finalisation are removed.
IT IS NOTED that publication of this judgment under the pseudonym McGrath & Bean is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1254 of 2015
| MS MCGRATH |
Applicant
And
| MR BEAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings for final parenting orders with respect to the parties’ two children:
a)X born on (omitted) 2012; and
b)Y born on (omitted) 2014.
As is evident from the children’s dates of birth, they are very young, X being 4 years and 3 months old and Y being 2 years and 7 months old at the time of hearing.
The children’s parents, who are the Applicant mother and Respondent father, lived together for a relatively short period of time from December 2010 until May 2013. There was a brief period of reconciliation in mid/late 2013 resulting in the younger child’s conception.
Like many of the cases which come before this Court, the facts are sad for the children. The main difficulty faced by the children in this matter is that their young mother has an issue with alcohol.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (subs(2)) and additional (subs(3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s60CG (1)(b)[1]. The Court may include[2] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[1] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[2] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[3]
[3] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[4] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[5] affirmed the legislative pathway.
[4] (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] [2010] HCA 4
In Starr & Duggan[6] Boland, Thackray & Watts JJ stated :
…. the legislation does not mandate consideration of the relevant sections in any particular order.
[6] [2009] FamCAFC 115
The evidence in the proceedings
The mother relied upon the following documents
a)Initiating Application filed 26 April 2016;
b)Affidavit of Ms McGrath sworn 2 February 2015;
c)Affidavit of Ms McGrath sworn 9 March 2015; and
d)Affidavit of Ms McGrath sworn 7 October 2016.
The father relied upon the following documents:
a)Amended Response filed 5 October 2016;
b)Affidavit of Mr Bean sworn 5 October 2016;
c)Affidavit of Ms B sworn 5 October 2016; and
d)Affidavit of Ms H sworn 30 September 2016.
The Family Report of Ms J dated 22 February 2016 became the only Exhibit in the proceedings.
The mother was born on (omitted) 1982.
The father was born on (omitted) 1982.
The mother has a child from an earlier relationship, A, born on (omitted) 2005, who lives with her father and spends very limited time with the mother.
The parties commenced a relationship in (omitted) 2010 and began cohabiting in (omitted) 2010.
During the parties’ relationship, the mother drank alcohol on a regular basis. She was a heavy drinker. The father says that she would commence drinking in the morning, before having breakfast and when he returned home from work he would often find her intoxicated, and she would then continue to drink into the evening.
The mother, after consuming an amount of alcohol would become aggressive and angry. When she had reached this point, the mother would argue with the father over minor matters, and during such arguments she would yell, scream and swear at the father. Sometimes she would hit him, sometimes she would spit in his face.
The father provides examples of the mother’s drinking at family functions, such as for example in February 2011 when the parties attended a funeral of the paternal great grandfather in Victoria. The father says the mother became intoxicated and the parties were banned from the Caravan Park at which they were residing. A further example provided by the father is that in February 2012 the mother smashed a sliding glass door at the parties’ residence whilst intoxicated.
On 10 June 2012 the parties commenced residing in a granny flat at the rear of the residence of the paternal grandparents.
The first child of the parties, X was born on (omitted) 2012.
In December 2012 the parties attended a Christmas gathering with family in Victoria. The mother became intoxicated and wanted to drive from Victoria to New South Wales with the child in the car.
On 11 May 2013 the mother attacked the father with a glass bottle causing a large laceration to his leg. The parties had been arguing over a period of a few days, and the father had slept on the lounge as a result. On the evening of the incident, the father decided that he was going to sleep on the bed, and the mother then tried to push him off. She then picked up an empty glass bottle, smashed it on the father’s elbow as he raised it to protect his face, and the bottle cut the father to his leg. The mother says that she too suffered a cut to her hand as a result of this incident.
The parties separated in May 2013 and the mother commenced residing with her sister at (omitted), in New South Wales.
The parties briefly recommenced their relationship in mid to late 2013 and in December 2013 the mother started living in (omitted).
On (omitted) 2014 the parties’ second child, Y is born.
Post the parties separation, both children remained living with the mother, and the father spent time with the children pursuant to the parties’ agreement from time to time.
In July 2014 an incident occurred, where the mother was too intoxicated to attend her grandmother’s funeral. She subsequently attended at the wake where she continued to consume alcohol.
The father commenced a relationship with his current partner Ms B in (omitted) 2014 and they commenced cohabitation in late 2014.
On 29 September 2014 the father came to the mother’s home at about 6pm. When he knocked on the door, there was no answer, notwithstanding several tries. He could hear X calling out “Daddy”, and Y was crying in the background. The father then let himself into the house by going to the back door. When he walked into the kitchen, he saw X was up on a chair reaching for a block of knives on the bench. The mother was lying on the bed with an empty bottle of vodka next to her, and the father was not able to rouse her. The father stayed at the house and looked after the children until the early hours of the morning, while the mother slept. He left the children in their cots, and the mother asleep on her bed at about 2am. The next morning, on his way to work, the father stopped at the mother’s home. Eventually the mother answered the door, but appeared to be confused and disorientated. The father after checking on the children, picked up X and on his way to pick up Y, the mother grabbed her and turned away so the father could not take her. The mother was swearing and yelling at the father at this point. The father then telephoned his partner who came with a child seat a short time later. The maternal grandmother also arrived at a similar time. The father then told the maternal grandmother that he was trying to look after the children as the mother was drunk again. He indicated that he wanted to take both of the children with him. The father then decided to take X but leave Y. His rationale was that Y could not yet walk, and there was therefore less chance of her hurting herself than X hurting himself, if the mother was not properly caring for them.
What resulted from this is that the children were living apart for some time, and spending very little, if any time with the other parent.
On 12 February 2015 Interim Orders were made at the Campbelltown Local Court and X returned to the care of the mother.
On 12 March 2015 further interim orders were made by Campbelltown Local Court.
Since the orders had been made, both children have been spending time with the father in accordance with orders.
Since 2015, there have continued to be incidents reported by the father of the mother being too intoxicated to care for the children. For example, in early 2016 when the paternal grandparents went to return Y to the mother, the mother was too intoxicated to answer the door. A similar incident occurred in September 2016.
On (omitted) 2016, the father’s and Ms B’s child B was born.
Section 60CC(3) Factors
Views of the child and Relationship of child with parents and other persons
The views of the children, because of their very young age, would not be given any significant weight, even if they were independently reported.
The Family Report writer was of the opinion, having observed each of the parent’s interactions with the children, that the children have established relationships with each of their parents.
Furthermore, the Family Report writer stated after observations that there were no difficulties in the children’s relationship with either the maternal or paternal grandparents.
The Court finds that both children have warm and loving relationships with both of their parents, their grandparents and the father’s partner.
Parents’ participation in long term decisions, spending time and communicating with child
Both parents are keen to spend time with and communicate with the children. Both parents are keen to be involved in the long term decisions affecting the children.
The parents have had significant difficulties in co-parenting after separation though, particularly at the time when the children were separated for a number of months.
Parents’ obligations towards maintaining the child
Neither of the parents pays any child support at present.
Likely effect of any changes in the child’s circumstances
The children have been living with the mother since separation, which is almost for the entirety of their young lives. They have been spending time with the father, but nowhere near as much as they have been spending with the mother.
The mother’s proposal would see no change to the children’s living arrangements, and little change to their routines particularly as they grow older and start formal schooling. Some of these changes will be the normal and usual changes which occur in all children’s lives as they grow older, and some will be because of the orders which the mother proposes.
The father’s proposal sees a significant change in the children’s living arrangements and daily routines. It sees them moving from their maternal grandparents’ home where they have been living with their mother for approximately the last two years to moving to their father’s home with one half sibling and three step siblings.
The mother in her frank evidence during cross examination conceded that the father was a good father capable of looking after the children. She was of the view that there would be no difficulties for either child in spending time with the father in accordance with her proposal, which straight away included three weeks during the school holidays and three out of four weekends from Friday to Sunday.
Given the strengths of the children’s relationships with both of their parents, and the willingness of the parents to facilitate and encourage the children’s time with the other parent going forward, the Court is comforted that any impact on the children as a result of the changes which these orders will bring about will be softened.
The father’s proposal still sees the children spending significant and substantial time with the mother, and facilitates a meaningful relationship going forward.
The intent and purpose of the orders as made is to allow the children time (as uninterrupted as possible with what else is going on in the parents’ home) with each of their parents.
Practical difficulty and expense of a child spending time with a parent
The relevant matters with regards to practical difficulties are addressed elsewhere in these Reasons.
Parties’ capacity to provide for the needs of the child
The mother does not dispute, even admits against interest, that the father is a capable and loving parent. She also conceded, he does not pose any risk to the children, and that they are safe in his care.
The father likewise does not dispute that the mother is a capable and loving parent. The Court finds that the father has found it very difficult to make the application to this Court for the children to live with him. This is not because of any lack of interest but rather because he believed that despite the mother’s shortcomings she was still a good mother. He always gave her the benefit of the doubt, at times to his own detriment and at other times, and more concerningly, to the detriment of the children.
Attitudes to child and responsibilities to parenthood of parents
There is dispute between the parties in relation to the father’s lack of support of the mother during her pregnancy with the younger child, and also in relation to his overall lack of financial support for the children. If accepted, these matters would reflect poorly on the father’s attitude and responsibilities to parenthood.
These matters however, need to be considered in context and in light of the father’s evidence. Firstly, while the father concedes he has not paid child support he says he has financially supported the mother and the children by paying her rent and otherwise providing the mother with financial assistance. The father also says the mother had not applied for child support.
In any event, and in light of all of the relevant matters, this is not a matter which would tip the balance in either direction.
Family Violence
Most of the violence between the parties during their relationship and post separation has been alcohol fuelled. These matters were referred to earlier in the reasons.
Most of it arises as a result of the mother’s drinking to excess.
The alcohol fuelled violence does pose a significant risk of harm to the children, and needs to be minimised, controlled or eradicated.
The orders which are made, include safeguards to ensure that the children are not exposed to an unacceptable risk of harm by virtue of the injunction preventing the mother from consuming any alcohol at all while the children are with her or for twelve hours prior.
Further Proceedings and Any Other Relevant Matters
These are final orders and it is envisaged that they remain in place until both children are 18, albeit that is some time away.
As with all parenting matters, although these are final orders, if there is some changed circumstances which would justify the Court re-opening parenting proceedings then this will be a matter to be dealt with if and when it arises.
The Court is hopeful that the mother will in due course seek out and obtain professional assistance to help her deal with her historical and current alcohol consumption and dependency, particularly in light of what effect these orders might have on the mother.
Primary Considerations: s60CC(2)
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[7]
[7] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations set out in sub-s 60CC(2), the Court must give greater weight to the consideration set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child”: Mazorski & Albright[8] and cited with approval by the Full Court in McCall & Clark.[9] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[10]
[8] [2007] FamCA 520 at [26]
[9] [2009] FamCAFC at [121]
[10] Ibid at [122]
Mother’s Alcohol Use
The evidence in the father’s Affidavit about the mother’s historical alcohol use was to a large extent unchallenged. Some of that evidence is referred to earlier in these Reasons, but the father’s evidence is certainly concerning in relation to the mother’s long term and consistently heavy alcohol consumption, particularly on occasions when the children have been in her care.
The mother’s evidence in relation to her alcohol consumption is contradictory.
During the interviews with the Family Consultant for the purposes of the preparation of the Family Report, which occurred on 18 January 2016, the mother denied the father’s allegations that she consumed alcohol to excess, either historically or currently. In regards to her current use, the mother said that she consumed approximately half a dozen vodka drinks on a Friday or Saturday night whilst at home with Y and the maternal grandparents.
The mother’s current level of alcohol consumption as stated to the Family Consultant is excessive.[11]
[11] Paragraph 112 Family Report – referring to the Australian Government’s current national guidelines for alcohol consumption
In the trial Affidavit filed on the first day of hearing, namely 10 October 2016, the mother says as follows:
I agree that in the past I did perhaps over indulge in drinking alcohol, and I feel ashamed about this. I have stopped this practice for some time now. Over the past 12 months or so, I would only take an occasional drink during a party or an event. I have spoken to my doctor about what is acceptable as far as drinking alcohol and she said to me: “One or two drinks two or three times a week is considered to be the safe level of consumption of alcohol.” I do not even take this much alcohol now, so I am comfortable in knowing that neither I nor my children are at risk from my alcohol consumption.
During her cross-examination the mother made a number of concessions in relation to her alcohol use in the past. She agreed that she denied having a problem with alcohol to the Family Consultant, that in her first Affidavit filed in these proceedings (which was not relied upon a trial) she did not mention drinking at all, in her second Affidavit (which was also not relied upon a trial) there was no issue raised in relation to her drinking and in her trial Affidavit she gave evidence as outlined in paragraph 75 above.
The mother said that she was completely open with her drinking since she has been living with her parents, which was approximately two years ago, and that she cannot hide her drinking from them (nor does she do so).
The paternal grandmother’s evidence, which was not challenged at all in the proceedings, is that during the parties’ relationship, the mother was observed to hide her drinking by putting spirits in red cordial drinks. The mother would hide the empty spirit bottles in the bins of neighbours, in the kitchen cabinets and in other places.
The mother said that after the Family Report interviews and after speaking to her doctor, that she “just cut right back” her drinking.
The mother accepted during her cross-examination that before X was born she was an alcoholic. She also said that she stopped being an alcoholic when these proceedings started.
The mother has not seen it is appropriate to attend any counselling or seek any external help to deal with her excessive alcohol use. She says that her parents helped her a lot, and that she will continue to rely upon them as a support.
The mother also said that she is not a naturally angry person and that she is only angry when drinking. While she did not remember hitting the father or spitting on his face, she said that these things could be true. Being cross-examined about an attack on the father with a glass bottle the mother admitted to being violent on that occasion but said that this was not alcohol fuelled violence.
The mother’s parents, who might have been seen as a protective factor for the children, were not called as witnesses in the mother’s case. For that reason, I draw a Jones v Dunkel[12] inference in respect of their evidence. They were however interviewed by the Family Consultant.
[12] (1959) 101 CLR 298
To the Family Consultant the maternal grandparents said that when they invited the mother to move in with them there was a stipulation that she had to attend Alcoholics Anonymous, counselling and a playgroup with Y. The maternal grandfather said that although the mother had not attended Alcoholics Anonymous, her excessive alcohol use had resolved itself. The maternal grandmother said that the mother was a totally different person than one year ago, and that if she did move out of their house they would not let her get “so low again”.
The maternal grandparents said to the Family Consultant, when asked about the mother’s current alcohol consumption, that she had a vodka every now and then. They also said that the mother no longer resorted to alcohol when she was upset.
As a result of the maternal grandparents not being witnesses in the mother’s case they were not cross-examined in respect of the matters that they had said to the Family Consultant, which contradicted the mother’s evidence in relation to her drinking as at the date of the Family Report interviews.
A number of risks which have been identified by the Family Report writer relating to excessive use of alcohol are as follows:
a)There is a history of violent behaviour by the mother during periods of time when she says she was affected by alcohol;
b)Excessive alcohol consumption is associated with all major forms of child abuse and neglect. It can often lead to children’s educational outcomes suffering because the alcohol abusing parent is unable to assist them with school work or ensure that they attend school on time. Alcohol abuse can also lead to parents using inconsistent parenting strategies leading to confusion and behavioural difficulties in children. In the matter of small children and major risk from alcohol use arises when the parent’s alcohol use impact on their ability to adequately supervise the children placing them at significant risk of physical harm;[13] and
c)Alcohol use can have an impact on mental health and there is a chance that the mother’s alcohol use could trigger a mental health episode which may place the children at risk of harm.
[13] Family Report ¶110
The Court finds that these risks as identified by the Family Consultant are probable and not remote. They are real risks of harm and they are unacceptable. They exist at present, on the facts as found in these Reasons. The Court finds that if the mother was to move into her own residence again, or experience additional stressors, there is a risk that her alcohol consumption would become even more problematic.
The Court finds that the risk of harm to the children if they were to continue to live with the mother is significantly higher than if they were to spend time with her.
The Court also finds that the risk of harm to the children is significantly lower in the father’s household than in the mothers.
The mother has not availed herself of any external support in respect of her historical and current alcohol use. This is so despite the clear recommendations in the Family Report for her to do so.
Parental Responsibilities
The parties both seek an order for equal shared parental responsibility.
One of the issues which had arisen between the parties regarding long term decision making associated with the children’s health was whether or not the children should be immunised.
Initially the mother had taken the view, which she still held at the time of the Family Report interviews, that the children should not be immunised. She was aware that the father did not share this view.
The mother changed her views about immunisation after having discussions with the father. Subsequently, both children have been fully immunised.
The mother agreed that her and the father are able to discuss the children’s future health needs and come to a joint decision.
At present, the parents have a relatively good co-parenting relationship. It is a relationship which has certainly improved since the Family Report interviews, and appears to be working reasonably well.
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[14] Section 61DA provides for a presumption of equal shared parental responsibility that the Court must apply when making a parenting order. In this instance, the presumption is not rebutted.
[14] See note 1 s61C
The Court hopes that with appropriate intervention the difficulties in the parties’ relationship will improve, hence the Order pursuant to s.13C.
The parents live within a reasonable proximity of each other, and this of itself would not be an inhibition to the children living with the parents on either of the two basis referred to in s.65DAA.
Neither child is yet of school age. Neither parent objects to the other’s proposal for day care and/or primary school for the children. The distance between the two households may prove slightly more challenging once one or both children commence formal schooling. However, this is not a matter of itself, or even when combined with other factors would contraindicate equal on significant and substantial time.
The parents have had difficulties in the past, both in term of their ability to communicate with each other and also in terms of the capacity to implement parenting arrangements between them. If such past difficulties are any indication of what the future brings, then equal or significant and substantial time is contraindicated. Coupled with this is the Family Report writers’ opinion that the parental conflict and lack of communication would appear to exclude an equal time arrangement being in the children’s best interest.
There is no evidence about how an equal time arrangement might impact on the children, or indeed significant and substantial time.
What the Family Report does recommend is that the children should continue to live with the mother and spend significant and substantial time with the father, to include both weekend and weekday time. This recommendation is of course made, barring any significant risk issues identified for each household.
Further, the Family Report writer opines that if the mother does not take adequate steps to address her alcohol use, then the father may need to consider taking on the care of the children in a more significant way. This is exactly what the father has done.
Unlike the mother, who has not taken on board the very important recommendations in the Family Report to address her issues through alcohol counselling prior to a final decision being made in this parenting matter, the father has stepped up to the task and made the decision to seek orders for the children to live with him.
The children’s surnames
One of the orders sought by the mother by way of her “Amended Proposed Orders”[15] was that both children’s surnames be changed to Bean-McGrath.
[15] although what amendments were sought when compared to the document handed up at the commencement of the hearing was blatantly unclear as the amendments were not identified in the usual fashion provided for in the rules and known by practitioners
No submissions were made in support of or in objection to this order by either party.
The children have different surnames. The mother explains the reasons for this as being that at the time of Y’s birth the father was not interested in being noted on the Birth Certificate as Y’s father. The father was not cross-examined about this issue nor does he give any evidence in chief about the children’s surnames.
The parties are the children’s parents. The children are to live with one of their parents and to spend significant and substantial time with the other parent pursuant to these orders. It can only be in the children’s best interest that they have the same surname which identifies both of their parents. For that reason the Court will make an order in accordance with the mother’s application for both of the children’s surnames to be Bean-McGrath.
Costs
The father sought an order that the mother pay his costs of and incidental to these proceedings. No submissions were made by Counsel in this regard, and the Court was not taken to any evidence which might be said to be in support of such an order being made.
Relevantly, each party to proceedings under the Family Law Act (subject to s117(2), namely that there are justifying circumstances) shall bear his or her own costs.
The Court is not satisfied that there are any circumstances which might justify an order for costs and which departs from the usual rule contained in s117(1) of the Act.
Conclusion
As difficult as this decision has been, the Court is persuaded that overall the children’s best interests will be served if they are to live with the father and spend significant and substantial time with the mother.
There will no doubt be a period of adjustment for all concerned, lest of all Y who has always lived with the mother. However, the children’s strong relationships with both of their parents, and the significant and substantial time they will be spending with their mother will see them through.
The Court has carefully weighed up and considered all of the primary and secondary considerations, and all of the evidence in the proceedings, and the issue which has tipped the balance in the father’s favour is the mother’s lack of willingness to engage in services to date and expressed lack of willingness to do so in the future. She does not recognise that she has a problem with alcohol, a long standing one by her own accounts, and that more is needed by way of support than simply doing it herself and with the assistance of her parents. The Court is concerned that the long term risks of harm to the children if they were to remain living with the mother are simply unacceptable, particularly as the mother has not sought external assistance despite the matters raised in the Family Report and the recommendations contained therein.
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 9 December 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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