Melan and Tipper
[2012] FamCA 45
•8 February 2012
FAMILY COURT OF AUSTRALIA
| MELAN & TIPPER | [2012] FamCA 45 |
| FAMILY LAW – CHILDREN - Parental Responsibility – with whom a child shall live and spend time – father withdrew from proceedings and matter proceeded on an undefended basis - mother has been the primary carer for the children – children enjoy a relationship with the father and want more time with him – evidence of violent assaults by father on mother during relationship – father has history of violence towards the mothers of his children and an anti-social attitude to authority – need to protect children from family violence – father’s communication with children overly harsh and damaging to children’s self-esteem – children exposed to father’s mood changes and anger directed at them – children will be safe, physically and emotionally living with mother – apprehended violence orders taken out in protection of mother from father and another partner of the mother- presumption of equal shared parental responsibility rebutted – orders mother to have sole parental responsibility for the children –orders children to live with the mother – orders children to spend time with father for periods of time three times a year and telephone contact between the children and the father |
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Mr Melan |
| RESPONDENT: | Ms Tipper |
| FILE NUMBER: | NCC | 185 | of | 2010 |
| DATE DELIVERED: | 8 February 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 6 December 2011 |
REPRESENTATION
| APPLICANT: | Father in person, but withdrew prior to commencement of hearing Mr Wilkinson |
| COUNSEL FOR THE RESPONDENT: | Mr Wilkinson |
| SOLICITOR FOR THE RESPONDENT: | No instructing solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kelly |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Craney Family Lawyers |
Orders
That all previous parenting orders are discharged.
That the mother have sole parental responsibility for the children J born … June 1998, B born … October 1999 and Y born … February 2003 (“the children”).
That the children live with the mother.
That the children spend time with the father as follows:
(a)for one week in the first and third term school holiday periods and failing agreement otherwise from 12.00 noon on the second Saturday of the holiday period until 12.00 noon on the third Saturday of the holiday period;
(b)
for 10 days in the Christmas school holiday period and failing agreement otherwise from 12.00 noon on 27 December to 12.00 noon on 6 January commencing 27 December 2012 and from 12.00 noon on
6 January to 12.00 noon on 16 January commencing 6 January 2014.
For the purposes of changeover of the children between the parents:
(a)The mother shall cause the children to be available at Public Building V, N Street, Town 1 at the commencement of periods of time referred to in Order 4 and the father shall collect the children from that place:
AND in the event that the father does not arrive to collect the children at the stated time AND has not advised the mother before the stated time that he would be delayed, THEN the mother may leave the changeover venue with the children and that period of time with the father shall not take place.
(b)The father shall cause the children to be available for collection at the McDonalds Restaurant in Newcastle Suburb 1 at the conclusion of periods of time referred to in Order 4 and the mother shall collect the children from that place.
The mother shall permit and assist the children to telephone the father at any reasonable time.
The father may telephone the children on the evening of each child’s birthday and at no other time.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melan & Tipper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC185 of 2010
| Mr Melan |
Applicant
And
| Ms Tipper |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Short history
The parents are now aged 40 and 36 respectively. They began living together in late 1995. The relationship continued for 10 years. Police involvement due to reports of domestic violence began in 1997. There are three children of the relationship, J (13), B (12) and Y (almost 9).
There was a separation prior to the birth of Y. Parenting orders for J and B were made in the Local Court in November 2002. These orders provided for joint parental responsibility, residence with the mother and regular contact with the father. At that time both parties lived in the Newcastle area.
There was a reconciliation in 2003.
In 2005 the family moved to Town 1. The parties separated finally in late 2006, about 12 months after the move.
The father returned to live in Newcastle. He had formed a relationship with Ms C. Ms C had two children from her earlier marriage. A child G was born to that relationship in July 2010. This relationship has now ended.
The mother also formed a new relationship with Mr R in 2008. A child T was born to that relationship in March 2010. The mother has remained living in Town 1.
In January 2010 the children alleged physical punishment and violent conduct by Mr R. There was a report to police. The father kept the children with him in Newcastle.
The children returned to live with their mother by Court order in June 2010, a period of about five months altogether.
The current application was filed by the father on 28 January 2010. It was prompted by those circumstances. Over the course of the following 18 months the position of the father changed as to whether or not he still sought the final orders contained in that application, namely residence, exclusive parental responsibility and supervised time for the mother. He did not amend his application.
I had the impression that the father was in fact generally satisfied with the mother’s care and commitment to the children over their lives. It was the conduct of Mr R which had been his central concern.
The amended response of the mother filed 25 July 2011 sought sole parental responsibility for herself and residence; with school holiday time and telephone contact for the father.
Her ultimate position was one of no contact, although this position did not appear to be firmly held. Her true position seemed to be she would accept the decision of the Court whatever that was.
Unfortunately the father withdrew from the proceedings on the first day the matter came before the Court for final hearing, namely 6 December 2011. He could not be persuaded to remain and left the Court. Accordingly the matter proceeded on an undefended basis. The mother, her partner, Mr R and the family consultant gave evidence and were cross-examined. Detailed submissions on behalf of the mother and the Independent Children’s Lawyer followed.
Residence and time with each parent
In determining what is in the best interest of the children I must consider:
(A) The benefit to the children of having a relationship with both parents.
(B) The need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
I must also consider a range of matters, including the views of the children, the nature of relationships, the capacity of parents and any practical difficulties of contact (Family Law Act 1975 (Cth), s 60CC).
(A) Relationship with both parents
The children do have a relationship with both parents. The mother has been their main carer throughout their lives, other than the first half of 2010. She is crucial to their stability and happiness.
The father has maintained his relationship with the children despite the geographical distance between them (a little over five hours by car). He did not pursue his application at the hearing.
The Court has the benefit of three reports on the children by Ms F, Family Consultant:
1. Children and Parents Issues Assessment 14 May 2010
2. Child Dispute Conference Memorandum 1 July 2011
3. Family Report 5 October 2011.
In May 2010 the children complained of their father yelling at them, being tired from working long hours, angry at times, but they also were all clear that they loved him and wanted to spend time with him.
The mother very fairly reflected in her interview in May 2010 that all three children had wanted to have more time with their father “for a very long time” and had benefited from the extended period of time with him, despite greatly missing her, and she them.
In July 2011 the relationship between the father and Ms C had broken down and the father was unemployed. In a more hostile atmosphere, the children reported that they were afraid of their father’s temper and worried that he might not return them to their mother. Y and J were assessed to be anxious about spending time with their father.
In September 2011 the father refused to participate in an interview with the Family Consultant and was assessed by her to be hostile and angry. He sat in a room with the children, did not interact with them and declined to take up the opportunity to leave the building with the children to have lunch.
The father had raised in Court his belief that the Family Consultant was prejudiced against him prior to these interviews. He preferred to see a different Family Consultant.
Apparently the father chose not to engage with the Family Consultant as a result of his belief saying to her, “You are biased.”[1] The interview was terminated. His mood thereafter was observed to lift; he smiled and joked with Ms C and the children.
[1] Family Report, page 14, par 67
J was clearly anxious when interviewed, worried about her father’s mood. She appeared to be quite sensitive to and intuitive about her father: “…. her father is very unhappy and that is why he gets angry. She knows he misses them”[2].
[2] Family Report, page 24, par 36
J had a confident expectation that she would continue to see her father and expressed again an earlier hope that he would be more available to them during visits, now that he was not working. She expressed a perfectly reasonable age appropriate view that she wanted to spend some time with her mother and local friends[3] in holidays.
[3] Family Report, page 25, par 40
Although J spoke of it being “fair” for she and her brothers to spend half of each school holiday period with their father, I do not consider that she was suppressing a wish to spend no time with him. J also has a close and affectionate relationship with her little sister G and with Ms C.
B was looking forward to seeing his father and, like his sister, was hoping for more time with him. He spoke affectionately of G. He had some complaints about the fairness of his father’s punishment methods. There is no evidence that B wants to end the relationship with his father.
Y has enjoyed talking to his father on the telephone and going to the beach with him, although those opportunities have been rare. Y thought about a week at a time with his father would be good. Y was observed to have a close and affectionate relationship with both his little sisters.
All the children do enjoy a relationship with their father. I conclude that they have wanted more time with him and to engage in enjoyable activities with him. I consider that they also wish he was kinder and more predictable.
(B) Need to protect the children
The children have been exposed over their lives to his mood changes and anger directed at them, their mother, Ms C and other members of the extended family. Their father has hurt the people they love and hurt and insulted them.
The Family Consultant expressed a very strong view, carefully documented, that the father represents a “serious high level of risk of harm to the mother,
[Ms C] and the children.”[4] On that basis the Family Consultant contends that the expressed wishes of the children should not be taken into account and that all contact should cease. Tendered into evidence[5] were police records of violent assaults by the father on the mother during their relationship.
[4] Family Report, page 32, par 65
[5] Independent Children’s Lawyer – Exhibit ‘3’
I accept that the father has a history of violence towards the mothers of his children and an anti-social attitude to authority. This is a serious matter and one of the primary considerations. Exposure of the children to violence by a parent leads to that conduct being copied. It can also lead to an acceptance of violence by children in their own relationships later in life. Development can be adversely affected.
I take into account the father maintaining his relationship with the children, his appropriately protective attitude when complaints about Mr R arose and the pleasure the children took early in 2010 in having extended time with their father.
The way the father speaks to the children is overly harsh and damaging to self-esteem. However to cut them off entirely from their father may have unintended and negative consequences. It is not what they are expecting or hoping for.
There is no evidence and probably could not be, of the impact on them of terminating the relationship between the children, their father and consequentially G and Ms C.
The Orders provide for periods of time for the children to spend with the father three times a year and telephone contact whenever the children wish to call the father. This will allow relationships to be maintained until the children are old enough to make their own decisions. The arrangements for changeover in the Orders address past incidents where the children have expected to see their father and have been let down. It is for that reason that periods of time start in the children’s local area.
I consider that the cost of travel three times per year is reasonably practicable for the father, especially as there need not be overnight accommodation. Likewise for the mother, who referred in her affidavit to having family in Newcastle she could stay with.
Parental capacity
The mother has been responsible for the care of the children. B has particular learning difficulties arising from diagnosed behavioural disorders. He is home schooled by tutors. The local high school, which his sister attends, cannot offer one to one teaching in this way.
The father has been dissatisfied with these arrangements for B. He has made many reports to the Department of Family and Community Services and the police arising from his dissatisfaction. This has no doubt been upsetting for B and the mother. There is no evidence to suggest that the schooling arrangements are inappropriate. The constant complaints and criticisms may have heightened B’s anxiety.
I conclude that the father broods about the children and in a particular mood, makes complaints to authorities whilst at other times is content with the care and education of all the children.
Likewise, the father is at times critical and belittling of J’s dress and conduct. He fears for her safety which is interpreted by her as harsh disapproval. The father in my view greatly underestimates the impact of what he says to the children and the profane sexualised language he uses to criticise them. No girl should ever hear herself described as “a slut” by any family member.
The mother has a capacity to be more positive and protective of their self-esteem. She has also made successful efforts to protect and promote their relationship with their father. This is despite her own experience of him as violent and unpredictable.
It is to the mother’s credit that she has understood the children’s needs in this way. She has been able to ameliorate the harshness of the father’s words. No doubt she knows he loves the children, but loses child focus when he is stirred up. Arrangements have been made for a Clinical Psychologist in Town 2
(Mr M) to assist the children. In my view they will benefit from that professional assistance.
The children will be safe, physically and emotionally, living with their mother. An order for residence has been made to that effect.
Parental Responsibility
Both parents have had parental responsibility to date, first by operation of law and then pursuant to orders made by consent in the Local Court in 2002.
The Court is now asked to make fresh parenting orders. When doing so the Court must apply a presumption that it is in the best interests of children for the parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or 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.
In this matter there is evidence of family violence. The father has been convicted of assault on the mother and his partner Ms C.
I am satisfied that on more than one occasion the children have had reason to fear for their own safety and wellbeing and that of their mother. The presumption therefore does not apply.
If it did apply I am satisfied that the unsatisfactory nature of the communication between the parents and the overt hostility directed by the father towards the mother from time to time rebuts the presumption.
Accordingly, I have made an order for the mother to have sole parental responsibility in addition to residence.
The mother’s partner broke the window in her house when he was drunk. The children were at home. He has also threatened one of the children with the cord of an electric jug.
Apprehended Violence Orders have been taken out for the protection of the mother from the father and from Mr R. She has acted swiftly to identify and restrain such inappropriate conduct. I accept that the children are not frightened of Mr R; however they have been resentful of his asserted role as their step-father, especially B. I consider that Mr R, at 28, has been well intentioned but a bit out of his depth as a step-father. I am satisfied that the mother will be vigilant and supportive of the children in her household.
Conclusion
I accept that in many ways it would be easier for the mother if all contact ceased. However she would undoubtedly have been dealing with some complex reactions if that was the case.
However I take the view that the mother will make every effort to support the children and comply with the orders.
It is a matter for the father to build on his relationships with his children and to take whatever steps he needs to maintain their trust and affection.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 8 February 2012.
Associate:
Date: 8 February 2012
Key Legal Topics
Areas of Law
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Family Law
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