Miller and Miller

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER & MILLER

[2014] FCCA 427

Catchwords:
FAMILY LAW – Children – interim dispute where mother seeks to maintain current parenting structure and father seeks move to equal time – best interests – order for equal time – parents to attend counselling, FDR and a step-parenting program.

Legislation

Family Law Act1975, Part VII, ss.60B, 60CC, 61DA, 65DAA

Rice & Asplund (1979) FLC 90-725
Goode & Goode [2006] FamCA 1346

Heath & Hemming (No.2) [2011] FamCA 749

Applicant:

MR MILLER

Respondent:

MS MILLER

File Number:

BRC 12122 of 2007

Judgment of:

Judge Purdon-Sully

Hearing date:

10 February 2014

Date of Last Submission:

10 February 2014

Delivered at:

Brisbane

Delivered on:

14 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr T Kirk SC

Solicitors for the Applicant:

Keating Lehn Solicitors

Counsel for the Respondent:

Mr J Bunning

Solicitors for the Respondent:

Browns Lawyers

ORDERS

That the parenting Orders made by consent and dated 15 November 2007 be discharged save for Order 1 which provides that the mother and the father have equal shared parental responsibility for the child, X born (omitted) 2006 (“the child”).
That each party shall be responsible for the day to day care, welfare and development of the child whilst she is in his/her respective care.
That subject to Orders 7 and 8 below, the child live with each of her parents on a week about basis during each school term as follows:
(a)In week one (commencing 17 February 2014), with the mother from after school on Monday (or, if not a school day, from 3.00pm Monday) until the commencement of school the following Monday (or, if not a school day, until 3.00pm Monday); and
(b)In week two (commencing 24 February 2014), with the father from after school on Monday (or, if not a school day, from 3.00pm Monday) until the commencement of school the following Monday (or, if not a school day, 3.00pm Monday).
That subject to Orders 7 and 8 below, the child will spend equal time with each of the mother and the father during all school holiday periods as follows, with changeover to occur at 3.00pm on the middle day of each school holiday period:
(a)In 2014 the child shall spend the first half of all school holidays with the father and the second half of all school holidays with the mother; and
(b)In 2015 the child shall spend the first half of all school holidays with the mother and the second half of all school holidays with the father.
That notwithstanding any other provisions of these Orders, the child shall spend time with each of her parents on the following special days as follows:
(a)Christmas Day and the child’s birthday (28 December) in 2014 with the father from 10.00am Christmas Day until 10.00am on 28 December and with the mother from 10.00am Christmas Eve until 10.00am Christmas Day and from 10.00am on 28 December until 10.00am on 29 December.
(b)On Father’s Day with the father from 9.00am the Saturday before Father’s Day until 7.00pm Father’s Day;
(c)On Mother’s Day with the mother from 9.00am the Saturday before Mother’s Day until 7.00pm on Mother’s Day;
(d)On the father’s birthday with the father from 9.00am until 9.00am the following day;
(e)On the mother’s birthday with the mother from 9.00am until 9.00am the following day.
That the parent with whom the child is living shall be responsible for delivering the child to the other parent’s home or school at the conclusion of the time that the child is living/spending time with him/her.
That in relation to telephone communication between the child and her parents:
(a)both the mother and the father shall be at liberty to communicate with the child by telephone between 6.00pm and 7.30pm each Tuesday and Friday when the child is not otherwise in his/her respective care; and
(b)each parent shall support and allow the child to telephone the other parent at any reasonable time the child requests to communicate with the parent with whom she is not residing; and
(c)each parent shall ensure, for the purposes of the child communicating with either parent by telephone in accordance with Orders 9(a) and 9(b) above, that:
(i)his/her mobile telephone is charged and operational;
(ii)the child has the mobile telephone with her;
(iii)the child is available to receive the telephone call;
(iv)the child has privacy during such telephone call;
(v)the child is not distracted or interrupted during such telephone call; and
(vi)if a telephone call is made at the appointed time and not answered for any reason, then the parent with whom X is living shall return the telephone call to the other parent immediately for the child to speak with the other parent.
That both parents be at liberty to communicate with and attend any school activity or outside school hours centre activity that the child may attend from time to time.

Notifications

That for the purpose of facilitation of communication in connection with the child, each parent will keep the other informed as to their respective:
(a)residential address;
(b)residential telephone number;
(c)mobile telephone number; and
(d)email address.
That in the event of the child being injured or taken unwell when she is in the care of either of her parents, the parent with whom she is at that time she is injured or taken unwell will notify the other parent as soon as practicable of the nature of her illness and/or injury and of the treating medical practitioner or hospital where the child is being cared for and the contact details of that treating practitioner or hospital so that the other parent can communicate with the treating practitioner or hospital.

Professional services

That the mother and the father shall arrange for the child to attend a child psychologist to assist and support the child in the context of the parents’ conflict and that such child psychologist shall be Ms A, and in the event that the mother notifies the father’s solicitors that Ms A is not a suitable helping practitioner, then the father shall provide a panel of three (3) child psychologists to the mother’s solicitors within seven (7) days and the mother shall forthwith select one (1) child psychologist from that panel within seven (7) days thereafter.
That the mother and father engage with a helping professional to consider their global functioning, including their capacity to form and maintain a healthy, committed adult relationship and the challenges for children presented by parent re-partnerings and blended families.
That the parties engage in and complete a “step parenting program” and for the purposes of that program the parties provide the program coordinator with a copy of these Orders and the family report prepared by Mr K.
That the parties be at liberty to provide a copy of the family report prepared by Mr K to any psychologist, counsellor, helping professional or Family Dispute Resolution Practitioner they may attend upon from time to time.
That the mother be at liberty to provide to Dr I a copy of the documents produced by way of subpoena from the Queensland Police Service and a copy of the family report prepared by Mr K.
That the parents participate in periodic family dispute resolution for up to four (4) times a year with a Family Dispute Resolution Practitioner selected by the father from a panel of three (3) to be provided to the father’s solicitors by the mother, and they shall discuss all aspects of the child’s health, education, welfare, religion, development, sport, discipline and/or any other matter and they shall each accept the recommendation of the Family Dispute Resolution Practitioner as to the number of occasions in each year that they are required to attend for such periodic family dispute resolution.

Restraints

That both parties be restrained from using illicit drugs and ensure that the child is not in the presence of any other person using illicit drugs.
That both parties be restrained from consuming alcohol beyond the legal driving limit prior to and whilst the child is in their care and will ensure that the child is not in the presence of any other person consuming alcohol beyond the legal driving limit.
That the undertakings provided by the mother and Mr B in the Orders dated 6 December 2013 continue.

Overseas travel

That the parties be at liberty to take the child out of the Commonwealth of Australia during the time that the child spends with either party during school holidays provided that the travelling parent gives to the other parent twenty eight (28) days written notice of:
(a)the proposed dates of travel;
(b)the itinerary; and
(c)the address and telephone number of the premises where the child will be staying.
That when the child is overseas the travelling parent shall arrange for the child to telephone the other parent during the trip on at least one (1) occasion in each week.
That this matter be adjourned for Mention at 9.30am on 25 August 2014 in the Federal Circuit Court of Australia circuit sittings at Southport.

IT IS NOTED:

A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRC 12122 of 2007

MR MILLER

Applicant

And

MS MILLER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

Introduction

These proceedings concern competing applications under Part VII of the Family Law Act1975 (as amended) (“the Act”) with respect to X, the only child of Mr Miller and Ms Miller.
X is aged seven years and one month, having been born on (omitted) 2006. She enjoys good health.
Her parents commenced cohabiting in (omitted) 2004, married on (omitted) 2006 and separated on 10 July 2007. They divorced on 9 November 2008.
X was only about seven months of age when the parties separated.
Since her parents’ separation X has lived primarily in the care of her mother, spending substantial and significant time with her father.
On 15 November 2007 when X was 11 months of age, the parents entered into consent orders which implemented a parenting structure which saw X live with her mother and spend four nights a fortnight with her father, namely from 3.00pm Thursday to 9.00am Monday, along with some increasing holiday time leading to half school holidays when X attended school. Parental responsibility was equally shared. That has continued to be the parenting arrangement.
The parties were also able to agree on property and child support matters.
Both parents live on the (omitted), the father at (omitted) and the mother at (omitted).

Some personal details

The father who is aged 35 years is a self-employed (occupation omitted) working at the (employer omitted) on the (omitted) and also at the (omitted).
He has a partner however it is not a live-in relationship. It can only be described as a new relationship in any event.
The mother who is aged 39 is in full-time employment as a (occupation omitted) with (employer omitted), although her hours conclude at 4.30pm during the work week.
She has been in a de-facto relationship for four years with Mr B. The mother and Mr B are engaged to be married and have been for the past three years.
Mr B is a former (occupation omitted) who is now involved in some part-time (omitted) work.
The mother’s household comprises Y, aged 15 years, a child from an earlier relationship with Mr C. Y is in grade 11 at (omitted) College, a change for her as until last year she was attending the same school as X. Y spends four nights a week and one half of the school holidays with her father.
Also residing in the home from time to time is Z, aged 16, Mr B’s daughter from his relationship with Ms S. She is a grade 12 student at the (omitted) High School. Z lives primarily with her mother however she spends regular time with her father including during school holidays.
X is in grade 2 at (omitted) College at (omitted).

Court history

The father initiated proceedings on 27 September 2013 seeking inter alia, orders on a final basis for week-about time and on an interim basis the preparation of a family report.
In summary, he deposed to inter alia, concerns about X’s behaviour at school and some further concerns heightened by an incident of domestic violence in the mother’s household on 2 April 2013.
The matter was originally listed in my Southport sittings. However, it was adjourned for Interim Hearing.
By an Amended Initiating Application filed on 26 November 2013, the father sought to discharge the 2007 Orders and that X live with him and spend time during the day only with the mother.
He also filed a Form 4 Notice. This arose from asserted concerns about the issues of domestic violence in the mother’s household following his perusal of subpoenaed police documents which indicated inter alia that:
a)the mother had sustained injuries during an incident of domestic violence at her home on 2 April 2013, a shower screen door had been broken and that X had been “in the view/hearing range of the incident”; that the mother had informed the police that the arguing between her and Mr B had “now increased over a period of time to be of a physical nature”; that the “frequency of the arguments also increases with the amount of alcohol” consumed by Mr B; and she “was fearful for the safety of herself and that of her children.”[1] Further, the police documents which were annexed to the updated affidavit of the father[2] record that Mr B had informed the police that the mother had been the aggressor on 2 April 2013 and that he had sought relationship counselling with her 18 months before. It is unchallenged that X has engaged in antisocial behaviours at school, particularly from March 2013 to October 2013. These behaviours have included aggression with other students and lying and stealing from supermarkets (see, for example, the mother’s email to the father of 25 September 2013)[3];
b)the police attended at the mother’s home on 2 April 2013 at her request following the incident of domestic violence involving Mr B and that Mr B was detained and taken to the watch house. The police then brought an application for a Protection Order in favour of the mother and the children, including X. That application was opposed by the mother and later dismissed on Mr B giving undertakings to the Court, including that Mr B would attend and comply with all recommendations of his treating general practitioner and psychiatrist for a period of 12 months.
[1] Notice of Child Abuse filed 26 November 2013, Para[ 5] affidavit of father filed 26 November 2013; Annexure B to affidavit of father filed 6 February 2014
[2] Annexure B to affidavit of father filed 6 February 2014
[3]Annexure D to father’s affidavit filed on 27 September 2013
Mr B suffers from post-traumatic stress disorder arising from his involvement in the (omitted) in 2004 and had been on extended sick leave from the (employer omitted) until his retirement from the (employer omitted) in November 2013.[4]
[4]Affidavit of Dr I filed 30 January 2014
The mother’s Response filed on 2 December 2013 sought a dismissal of the father’s application as a discrete preliminary issue on the basis that there had been no material change in circumstance to warrant a variation: in short, a Rice & Asplund (1979) FLC 90-725 argument.
The mother’s case was that the incident with Mr B had been a one-off incident with no repetition of that behaviour thereafter[5] and that with respect to the school issues, she had inter alia spoken to X and to her teacher and did not view any need for further interaction or counselling.[6]
[5]Paras 66 & 67 affidavit of mother filed 2 December 2013
[6] Ibid paras.[70]-[72]
The matter was before me on 6 December 2013. I adjourned the proceedings to obtain a family report, together with a report from Mr B’s psychiatrist.
The Orders made that day are a matter of record. There were undertakings from the mother and Mr B on a “without admission” basis not to leave X alone and unattended by Mr B.
Mr K, who prepared a family report, saw the parties on 20 January 2014. His report dated 30 January 2014 is annexed to his affidavit filed on 7 February 2014.
Mr K sets out a number of recommendations at paragraph [70] of his report, including that X live in an inclusive care arrangement with her parents with equal time with both parents or relatively more time with the mother and relatively less time with the father moving to equal time within and during the next 12 to 18 months with certain conditions which he sets out thereafter in detail.
Those conditions involve, inter alia, the parents engaging in some nominated interventions. I shall not go into all of the detail. It is a matter of record.
He also recommended that Mr B commit to not having X refer to him as “Daddy Mr B”, but as for Y, “Mr B”.
Following release of that report both parties amended their positions as follows:
a)The father sought by way of a further amended Application filed on 6 February 2014, on an interim basis, that X live in an equal time parenting structure, with changeovers on Monday and a continuation of the undertakings with respect to Mr B and the mother; and
b)The mother by way of her amended Response filed on 20 January 2014, inter alia sought a reduction in X’s time with her father to 3.00pm Friday to 5.00pm Sunday each alternate week and an order for sole parental responsibility in her favour.
The mother filed a report from Dr I, Mr B’s psychiatrist on 30 January 2014. She also filed a number of affidavits which are a matter of record.
At the Interim Hearing on 10 January 2014 the mother further amended her position to seek a continuation of the father’s time under the 2007 orders and a listing of this matter for a two day trial.

The mother’s case

It is the mother’s case inter alia, that:
a)where the Court is unable to determine disputes of fact, it should act cautiously;
b)whilst the father relies on the recommendations of Mr K, it is only one piece of evidence to be tested along with other evidence at trial and there will be challenges to Mr K’s report, including factual issues that Mr K did not or should have taken into account and his failure to consider the impact on X of a move to equal time;
c)the parents’ relationship is very poor with limited communication which would not support equal time. On a final basis the mother would be seeking an order for sole parental responsibility in her favour;
d)there is no pressing need or risk to X and to decide the issue in the father’s favour at an interim hearing usurps the role of the Court to hear tested evidence where the father seeks a significant change to the parenting arrangements for a child who has been in the primary care of the mother and where the nature of the parents’ relationship does not support that.
A more detailed exposition of the mother’s approach can be found at paragraph [48] of the written submissions of Counsel for the mother, Mr Bunning.

The father’s position

The father’s position is that the Court should immediately implement the recommendations of Mr K. A more detailed exposition of the father’s approach can be found in the written submissions of Mr Kirk, Counsel for the father.
Whilst the father contends that he could have sought that X live with him, apart from Mr B’s influence on the mother and her ability to respond to that dynamic, he views the mother as a good parent, is prepared to trust her in keeping X safe and has taken onboard the recommendations of the Court expert, including X’s wish to spend equal time with her parents.

He relies upon the objects of Part VII of the Act which refer to “ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (s.60B(1)(a)).
He proposes an updated report to assess how equal time proceeds at which time, he, and presumably the mother, can review the matter with the parties hopefully being able to avoid a trial if equal time is proceeding well.
He maintains his concerns about Mr B. It is his position, inter alia, that it would be unsafe to rely upon the opinions of Dr I with respect to the mental health of Mr B as Dr I relied on inaccurate information; that it is a reasonable inference to draw from the fact that Mr B was on extended sick leave that there had been a worsening of his condition to cause him to leave the (employer omitted) in November 2013 and that this would be consistent with what the mother had told police in April of 2013.

The issues

The issues then for my determination at this interim stage are:
a)firstly, whether I should, as proposed by the mother, leave in place the parenting structure that X has known since 2007, that is the 10/4 fortnightly arrangement or as proposed by the father move to an equal time week-about arrangement now;
b)secondly, whether the undertakings of the mother and Mr B given on 6 December should be discharged or at least modified to overnight time only as proposed by the mother or remain in place as proposed by the father, the mother’s case being that there are practical reasons why that cannot continue in the context of the needs of her blended family given her employment, Y’s attendance at another school and the time taken up in responding to these proceedings;
c)thirdly, whether there should be a restraint on X referring to Mr B as “Daddy Mr B” as recommended by Mr K, supported by the father, the mother’s case being that this is a trial issue and Mr K advances no reasoning for such a prohibition, paragraph [57] of his report in particular being the subject of challenge at trial;
d)fourthly, whether X should change her general practitioner at this interim stage with the father seeking that change and the mother opposing that on the basis that there is no evidence that X is receiving inappropriate treatment from her current general practitioner and that this is probably a trial issue;
e)fifthly, whether an order should be put in place as recommended by Mr K that the parties engage in family dispute resolution with an agreed practitioner on two to four sessions a year to discuss issues to do with X in the exercise of their parental responsibility; and
f)finally, whether or not, as sought by the mother, where the father is unavailable to care for X for a period of more than four hours, she be at liberty to do so, that being opposed by the father.

Material relied upon

In considering this matter, I have had regard to the material relied upon by the father as detailed at Part 1 of Mr Kirk’s written submissions together with the material relied upon by the mother as detailed in Mr Bunning’s written submissions. I do not propose to detail those. It is a matter of record.
Some initial objections were taken but not pressed by Mr Kirk to parts of the mother’s material.
I have had the benefit of written and oral submissions from the parties’ Counsel. I am grateful for their thorough preparation of this matter which has been of assistance to the Court.

Legal principles

In interim parenting decisions the leading authority that guides the Court is the Full Court decision in Goode & Goode [2006] FamCA 1346. A helpful overview of the relevant legal principles a Court is required to apply including an overview of the relevant cases in parenting matters following the decision of Goode can be found in the decision of Kent J in Heath & Hemming (No.2) [2011] FamCA 749.[7]
[7] See in particular paras [63] – [98]
In making a parenting decision the Court is required to make orders in the best interests of the child. That is the paramount consideration.
In informing my discretion to that end, I am required to follow a pathway and consider the matters in section 60CC of the Act whilst having regard to and being guided by the objects of Part VII of the Act and the principles underlying those objects as set out in section 60B of the Act.

Discussion

I have identified the competing proposals of the parties. I have also outlined some relevant facts and background to the litigation.
Whilst there are disputes on the evidence, that is usual at an interim hearing stage and notwithstanding those disputes I am required to follow a pathway in making Orders in the best interests of X.
Further, whilst Mr K’s evidence is evidence that must be weighed along with other evidence and the Court is the ultimate decision maker, and whilst further acknowledging that Mr K’s evidence cannot be tested at this stage, his report is important evidence coming as it does from an independent expert with appropriate professional qualifications who has had an opportunity to interview the parties, X and others, to review the material and make recommendations in the best interests of X.
These reports are of immense assistance to the Court at an interim stage precisely because evidence cannot be tested and where it is unlikely, as is the situation here, the Court can immediately accommodate a trial and is unlikely to be able to accommodate a trial this year.
So what arrangements I make at this interim stage will likely remain to trial unless there is agreement or further Court order, or on the father’s proposal, an updated family report, and here we have a child who is evidencing some concerning aggressive and antisocial behaviours, including stealing.
Further, whilst weight must be given to a care arrangement which has been in place for some time for a young child, here implemented by the parents in the child’s best interests, it is no answer to a report writer’s recommendations to simply leave the status quo until trial because there are asserted disputes of fact and because a party does not accept some of the recommendations of the report.
As I said, there are usually disputes of fact at an interim stage and invariably at least one party is unhappy with a report. The very nature of these reports often results in a challenge to beliefs, attitudes and perceptions, so Mr K’s recommendations cannot be easily dismissed.
Further, whilst Mr Bunning refers to factual issues that Mr K did not or should not have taken into account, they are not identified on the evidence. The mother did not file an updated or a further affidavit identifying those matters. Nor did Mr B, if for example he took issue with the contents of or parts of the contents of paragraph [57] of Mr K’s report - that paragraph dealing with part of Mr K’s interview with Mr B and what Mr B was reported to have informed Mr K with respect to his role in X’s life and the fact that she called him “Daddy Mr B” by her choice.
Nor is it an answer, as submitted by Mr Bunning for the mother, that there has been extensive material filed to date and that the matter has been before the Court twice since September and material will be filed before trial.
I accept the submissions of Mr Kirk for the father that there are significant unexplained gaps and inconsistencies in the mother’s evidence in her two affidavits, filed within a short period of time, with respect to X’s behaviour at school.
Further, her failure to address the contents of the police material in light of her earlier sworn evidence and that of her partner, and what she and the children are reported to have told Mr K, support the father’s concern that the mother has downplayed and/or minimised not only the incident of 2 April, but the evidence that corroborates relationship difficulties between her and Mr B that predate that event and any potential impacts for X who is acknowledged by all as acting out.
I further accept the submissions of Mr Kirk that in light of either unchallenged evidence before the Court and/or the evidence in the form of the police documents, the opinions expressed by Dr I, which appear to be based upon information provided by Mr B and the mother and also Dr I’s previous involvement with the father, should not be relied upon at this stage, namely that:
a)Mr B posed no damage to X;
b)Mr B had never been a threat to the safety of anyone;
c)Mr B had never mismanaged his ability to control his emotional life and his residual traumatic anxiety;
d)there had been no allegation by the mother of domestic violence or any associated hazards;
e)the mother’s call to the police was a plea for help for Mr B, the domestic violence application having been examined by the Court and dismissed.
Dr I, of course, did not have the benefit of consideration of the filed material or the police documents that were produced under subpoena.
Nor does his report suggest that he had been informed that the mother had acknowledged in her sworn evidence that Mr B had sent abusive emails to the father, on her evidence because of stress, anxiety, or intoxication and that Mr B had been drinking on 2 April.[8]
[8] Paras [58] & [69] affidavit of mother filed 2 December 2013
This is relevant given:
a)firstly, Dr I reported Mr B informing him that he was presently “relatively stress intolerant” although he had good days and bad days, with him at his worst when subject to stresses, including his exposure to “certain types” of people, albeit those certain types were not defined; and
b)secondly, Dr I referred in his report to Mr B having ongoing emotional problems after 2004 and his diagnosis of “Post Traumatic Stress Disorder with chronic and entrenched medically stable residual features involving a significant detrimental personality change with continuing functional impediments which are personal and social” and further, that he was “abusing alcohol as a means of self-medication and self-sedation” although “this problem has settled”.[9]
[9] Affidavit of Dr I filed 30 January 2014
Further, it cannot be challenged that if what the mother and Mr B are recorded as informing the police is correct, and if what the children are recorded as having informed Mr K is correct, and if what the mother deposed to at paragraph [60] of her affidavit filed on 2 December 2013 and what Mr B deposed to at paragraph [5] of his affidavit of 4 December 2013 is correct, then what occurred on 2 April 2013 involved an incident of family violence that would meet the definition under the Act.
Further, if what Mr B has recorded as having informed the police about the mother’s actions on 2 April 2013 is correct, that likewise would meet the definition of family violence and presented for him a significant stressor as he reported or is reported to have informed the police that he was endeavouring to get away from the mother.[10]
[10] Annexure B to affidavit of father filed 6 February 2014
In my discussion of the relevant primary and additional section 60CC considerations at this interim hearing, I make the following observations and findings.
There are risks to X in her mother’s household were she to be exposed to family violence. The evidence suggests that the mother may have downplayed or minimised those concerns. The evidence suggests that the relationship difficulties between Mr B and the mother were not confined to 2 April 2013 but predated that date.
The evidence further suggests that Mr B may be continuing to experience difficulties with his post-traumatic stress disorder and that by 2 April the mother was, at best for her case, sufficiently concerned to seek help for Mr B in the form of police intervention.
It would not be in X’s best interests if she was exposed to behaviour by Mr B, where, on the mother’s account with reference to the events of April 2013, he “was suffering significantly from his symptoms of post-traumatic stress disorder, was depressed, irrational, and had been drinking…” (paragraph [58] of mother’s affidavit of 2 December 2013) or if her account to Mr K was correct, namely, that Mr B was in a “dark place” on 2 April and was “self-medicating to feel better” (paragraph [39] of Mr K’s report).
A benefit of the father’s proposal would be to reduce X’s exposure to a repetition of that conduct or presentation.
Whilst undertakings were later given by Mr B to the Magistrates Court at Southport, there is no evidence to corroborate his compliance with those undertakings or full compliance with those undertakings. Dr I refers, for example, to follow-up treatment recommended in 2008, 2009 with a Dr P as having not progressed. No explanation was placed before the Court by Mr B in relation to this.
Given the serious matters that were before the Court and given that presumably the mother or Mr B knew his position, the Court would have benefited from a better understanding of what steps Mr B was taking to address these matters which led to his recent retirement from the (employer omitted), following, on Dr I’s account, a referral to him being made by his case manager and general practitioner in 2013 without any specific date being given.
I quote from page eight of Dr I’s report, under a subparagraph headed (b):
“In view of the failure to access Dr P and in light of my detailed knowledge of the background of the patient, I agreed to undertake a limited intervention to deal with the situation and to assist in the relief of some suffering. This ultimately led to his retirement from (employer omitted).”
So the evidence of Dr I suggests that Mr B was presenting with difficulties, Dr I’s reference being to his “suffering” at that time.
Mr B denied doing anything to harm or place X at risk. There is no evidence to suggest that he would purposely do so. However, in light of the state of the evidence, including evidence that suggests that Mr B has abused or had difficulties moderating his use of alcohol, reacts under stress, and, sadly, has been suffering from a significant disorder – a disorder I note for the record was acquired in the line of duty as a (occupation omitted) – I am unable to conclude that Mr B does not pose an unacceptable risk to X to warrant a lifting of the undertakings given by him and the mother.
This is not to suggest that the mother would not act protectively. The father says as much. The police documents support her having acted protectively, as does possibly something either Y or Z is recorded as having informed Mr K in relation to the mother having removed them at dinner time from the difficult situation that presented in her household.
However, there is evidence that corroborates the father’s concern that the mother has minimised the incident. The protection of a child must outweigh the practical difficulties that a continuation of the undertaking presents for the mother and her family. Those practical difficulties for the mother would be reduced on the father’s proposal.
I place significant weight on the findings that I have made which support the father’s proposal as to time and the maintenance of the restraints.
Whilst X has been primarily cared for by her mother all of her life - a significant fact in my consideration of the competing proposals - there is no persuasive evidence to suggest that her relationship with each parent is not established, strong and of meaning to her or that there are not significant benefits to her in continuing her relationship with both.
In this regard, both proposals will afford X regular time in the care of each parent, with the father’s proposal maximising her time in the care of both parents in line with the objects of Part VII of the Act and the principles underlying those objects.
The father’s proposal presents as a change, however it is a change supported by Mr K.
Whilst a proposal which will reduce X’s time in the mother’s household, it will be a change supported by her father with whom she has a very good relationship.
Whilst a criticism of Mr K’s report by the mother, there is no persuasive evidence that it is a change which would have negative impacts for her important relationship with her mother or her established relationships with her half-sister Y or Z, Mr B’s daughter with whom she also enjoys a good relationship, or extended maternal and paternal family members or Mr B.
For six years of her seven years, a significant proportion of her life, X has been transitioning between the households of her parents on a regular basis with no evidence of significant issues for her or that as the parents graduated her holiday time under the order, that that change presented her with difficulties.
Further, the mother’s household presents as a blended family, with three children with different parent combinations who, notwithstanding transitioning between various households, have been able to maintain positive relationships. They appear to have been able to make adjustments, as necessary, to respond to, for example:
a)the mother being in full-time employment;
b)Mr B transitioning between careers – according to Z, as reported to Mr K, he is looking at a job where the mother works;
c)Y changing schools and attending a different school to X;
d)Z attending a different school to X and Y;
e)Y spending regular time at her father’s home away from X;
f)Z living primarily with her mother, but spending regular time with her father; and
g)a significant age difference between the siblings, or I should say, notwithstanding the significant age difference between the siblings, these positive relationships have been maintained.
Whilst Mr K did not opine that X’s primary attachment continued to lay with her mother, X’s primary attachment does not present as a significant factor in the circumstances of this case as perhaps other cases. This is because Mr K’s evidence is borne out by the unchallenged facts that post-separation, that is, for six of her seven years, there has not been marked father-daughter interruptions in X’s care and her physical care history and circumstances are congruent with a view that she is likely to have been relatively attached to, dependent on, and/or identified with both of her parents. I have taken that from Mr K’s report.[11]
[11] Para [69] of Mr K’s report
Mr K’s observations of X and her father confirmed a warm relationship between them.
I must, of course, consider that any further change for X would come on top of a number of changes that have occurred in recent times in the mother’s household. However, the evidence suggests that this blended household is, as I have indicated, been able to respond to change.
Mr K does not identify in his report any concern that that change could not be managed in the context of the interventions he proposes, both parents having agreed to engage in supportive personal counselling as recommended by Mr K, although I acknowledge that there is an issue about the parties engaging in family dispute resolution.
Further, whilst it is a change against the background of a child experiencing behavioural difficulties, these difficulties have occurred when she was living primarily in the mother’s household. Even on the mother’s analysis at paragraph [5] of her affidavit filed on 17 January 2014, of the nine occasions when X has, on the mother’s evidence, acted out at school, seven of them were, on the mother’s evidence, when she was living in the mother’s household.
The mother also deposes to X’s poor behaviour on returning to her care as a concern for what may be happening in the father’s household. The father similarly raises a concern that X may be responding to what she may be experiencing in the mother’s household. Findings cannot be made one way or the other at this stage. Mr K, however, opines at paragraph [47] of his report in the context of a consideration of X’s expressed views to spend more time with her father and being sad when she does not get to see her father that:
“It is limited to conjecture but in her written material Ms Miller invites that it be noted that X’s described acting-out behaviour at school follows father-daughter time and it may be that the child is agitated about her father-daughter time being abbreviated or interrupted.”

He further opines at paragraph [38] of his report that the mother did not describe any issue in her or Mr B’s separate or shared functioning that may have exacerbated or contributed to X’s difficulties.
Whilst both parents view their parenting relationship as being dysfunctional, a relevant factor in any consideration of a proposal for equal time, the history reveals that within a short period of time – a matter of months of separating – the parents had been able to agree on parenting, property and child support arrangements with the assistance of lawyers.
Thereafter, for six years, nearly all of X’s life, notwithstanding their poor communication issues with each other, they were able to co-parent X together without the need for interventions.
Whilst I accept that these proceedings have triggered a plethora of accusation and counter-accusation, Mr K viewed as relevant to record in his summary discussion at paragraph [68] page 25 of his report that:
“…despite tensions and conflicts they maintained the 2007 post - separation FCC Consent Orders for inclusive care for X… until 2013.”
when the application of the father as filed.
Inclusive care continued after that.
The mother raises concerns about the father’s ability to provide consistent care for X on his proposal given his work commitments. However, Mr K did not identify any concerns.
The father addresses his work commitments at paragraphs [52] to [53] of his affidavit filed on 27 September 2013. He deposes to having available to him his mother, who is able to sleep over when he is on call. He deposes to backup family support. He deposes to his sister’s children attending X’s school.
Both parents are in full-time employment, in the mother’s case whilst primarily parenting not one, but two children. X will be the only member of the father’s household.
The father is not an untested parent. He has been a hands-on parent four days a fortnight since X was 11 months of age. X, on his evidence, has travelled overseas with him.
There is no persuasive evidence at an interim stage to suggest that he has not thought through, nor is able to make appropriate arrangements to care for X for a further three nights a fortnight whilst in his care.
This is not a case where the evidence suggests that either parent is not devoted to X nor has not sought to be consistently involved in her life, nor has not been prepared to exercise their parental responsibilities.
Nor is there evidence that the parents have functioning deficits that would suggest significant compromised parental capacity to meet X’s day-to-day needs at this interim stage, acknowledging as I do the various issues that they each raise on their material against the other.
The history, as I have said, is that notwithstanding their complaints they have been able to parent X and attend to her day-to-day needs.
Importantly, the evidence suggests that X would welcome extra time in the care of her father. Whilst the mother raises concerns about the father’s influence, and whilst I accept the evidence of Mr K that X’s views should not be unconditionally relied upon given her age and the adult angst, together with my inability at this stage to rule out those views being rendered free of influence, they have some value in my assessment for two reasons:
a)firstly, because if I made the orders sought by the father, spending more time in his care would not be an arrangement at odds with X’s views, attitude towards and perception of her father and her time in his household which appear to be very positive, and
b)secondly, Mr K opined that Y and Z’s views were more in accord with the father than the mother, which, in his view, suggested that X needed and wanted expansive relationship opportunities with both parents and families. Z, for example, recorded that X had said that she had fun at her father’s home. Y is recorded as informing Mr K that her memories of living with the father were also good.[12]
[12] Paras [64] & [69] of Mr K’s report
Of the competing proposals, the father’s proposal would afford X that opportunity.
Whilst an equal time arrangement works best supported by good parental communication, particularly for a child struggling at school, whatever the parenting structure put in place, the reality for this child at this point is that her parents have a compromised relationship. It is the real impact on her of a change that is important, not whether her parents’ relationship is likely to change in the near future. In the context of interim orders, with an updated report on the father’s proposal, these matters present of less a concern for the Court.
The submissions on behalf of the mother suggest that she is unwilling to engage in family dispute resolution with the father, at least at this stage. However, with the personal counselling recommended by Mr K and agreed to by both parties and with the counsellors, for example, being provided with a copy of Mr K’s report which it is open for me to order, then, family dispute resolution is, in my view, an option that is worthy of consideration.
The thrust of Mr K’s recommendations are that X should move to equal time or work towards equal time, thus affording her expanded relationship opportunities. It is a reasonable inference to draw from his report that if he had intended to recommend the status quo be maintained he would have said so. I place significant weight on his recommendations which support the father’s proposal.
There are no practical difficulties in this case as both parents live on the (omitted). On the father’s proposal, X would continue at her current school.
I have otherwise earlier addressed practical difficulties.
In relation to the consideration of parental attitude, there are a number of disputes that may impact on this factor, however there is no persuasive evidence to raise concerns for the Court with respect to that consideration at this stage. As I have said, both parents present as devoted parents who have assumed their parental responsibilities.
In relation to the issue of “Daddy Mr B”, if I can refer to it as that, the parents agreed in 2007 that they would equally share responsibility for long-term decisions to do with X. In my view, whether a child should be permitted to call the partner of a parent “dad” or “mum” or variations of that, notwithstanding that person being a significant person in the life of that child, that issue falls within the parameters of that order.
Further, there are good reasons for children not referring to partners of parents in that fashion. Parents may have more than one partner in the course of a life-time, however children will only ever have two parents.
Further, whether the practice came about by design or by virtue of blended family issues, and whilst the evidence suggests that Mr B has been an important part of X’s family life in the mother’s household, he is not her parent. Nor do the rights, obligations and duties of parenthood fall on his shoulders as they do the mother and the father, where the evidence here is that both have been willing to assume that role.
This is not in any way to devalue Mr B’s role. It does not have to be a case of either/or for X.
What part, however, of paragraph [57] of Mr K’s report is to be challenged by the mother is unknown because there is no evidence before the Court. However, if Mr K has accurately recorded what Mr B told him – and he put it in quotations in that paragraph – then it would raise some concerns about Mr B’s understanding of his role and X’s important relationship with her father and how that can be supported.
Mr K recommends that X not refer to Mr B other than as “Mr B”. Whilst I do not accept that there is no support in Mr K’s report for such a recommendation – for example, see paragraph [57] and also page 24 of Mr K’s evaluation – and whilst I accept that Mr B’s email to the father[13] which formed part of the material read by Mr K[14] may reinforce a concern that Mr B is seeking to inappropriately usurp the father’s role, there is little evidence from the parents on the matter. There is no evidence from the mother, and the father only raised it in the context of another issue.[15] In short, there is no evidence as to whether or not the father had consented to the use of the name originally.
[13] Annexure B to affidavit of father filed 27 September 2013
[14] Annexure B to affidavit of Mr K filed 7 February 2014 and as noted on page 2 of his report under the heading “Other information”.
[15] See for example para [23.4(2)] of affidavit of father filed 27 September 2013
Both parents, it seems to me, should be afforded an opportunity to place some evidence on that issue if it does not resolve before a final trial.
In my view, the better course is to send the parents off to a Post Orders Parenting Program or, better still, a step-parenting program to help them understand issues that regularly arise in blended families and how to respond to those issues in a child focused manner.
As I did not raise this during the course of submissions, I propose to take further submissions at the end of the delivery of these reasons in relation to whether or not I should be ordering that particular intervention.
I shall refer to the issue of family violence shortly. I am just looking at the various section 60CC considerations.
I have had regard to the parents’ background, as detailed in Mr K’s report and the issues that he identified relevant to the family dynamics. As I indicated earlier, both parents have said that they are prepared to engage in the recommended personal counselling.
In relation to the family violence, I discussed that earlier. As I said, it presents as a serious incident played out with three children in the household. The father cannot, in my view, be criticised for being concerned. The evidence suggests that all three children were upset by the incident. Y is reported to have informed Mr K that she had talked to her own father about what was happening in her mother’s home and that her father not only wanted to know what was happening, but was worried about her.[16] Z informed Mr K that she had cut short her holiday and returned to her mother’s home after the April 2013 incident.[17]
[16] Para[55] Mr K’s report
[17] Ibid Para [64]
Both girls reported that there were issues and/or fighting between the mother and Mr B before the actual incident. On the day in question Y reported hearing fighting, yelling, screaming and arguing, and Z also reported along similar lines.[18]
[18] Ibid Paras [48], [56], [63], [64]
Y also reported Mr B was drinking quite a bit and that the mother had removed the girls, but on returning home found things thrown around in the house, Mr B in the bedroom with the door locked having put water on her mother’s side of the bed, witnessing her mother’s fall, helping her mother and talking to the police.
Z reported Mr B trying to leave, but the mother not letting him leave.
X reported Mr B being angry with everyone, of hearing banging and everything falling over and her mother screaming.
The children’s versions are supported by the police documents.
Those documents and what the children are reported to have informed Mr K must be contrasted with the sworn evidence of the mother and Mr B filed on 2 and 4 December respectively. Their evidence suggested a one-off incident from which X had been cocooned, because she was asleep as the events played out.
However, on Mr B’s reported version to the police the mother had been the aggressor, he having tried to avoid her throughout the day as the argument continued, taking X, at one point, to his mother’s home to allow the mother to cool down. On his return, however, on his version, she had thrown a glass of beer over his head, thrown a glass at him twice, threatened to break golf clubs if he did not “piss off” and the children were in the next room whilst this was happening. When he tried to leave, the mother barred him from doing so resulting in him putting his hand, on his version, on her shoulder, her collapsing, and her calling out
“Kids, did you see this? I’m calling the police.”[19]
[19] Annexure B to Affidavit of father filed 6 February 2014
On the mother’s reported version to the police, the argument had raged from lunch time the day before, with Mr B a belligerent aggressor, damaging property, drinking, swearing and eventually shoving her, resulting in her falling down.[20]
[20] Ibid
The inference that can be reasonably drawn from their sworn evidence, namely, that the incident was a one-off, must be contrasted with other evidence. Whilst it may be that the engagement of the police was a one-off incident, two of the children reported to Mr K previous tensions between the parties. The police application reports two of the children’s names blanked out, reporting having “witnessed multiple verbal arguments between their parents and have expressed to police that they are fearful when this occurs”.[21]
[21] Ibid
Mr B is reported as having informed the police that he wanted to attend relationship counselling with the mother 18 months before, but she had refused and the mother was reported as telling the police that she feared for the safety of the children.
I previously referred to Mr K’s opinion in relation to Mr B and the mother largely denying, minimising and rationalising away responsibility for the April 2013 matters. In considering all of the evidence, including the affidavits of the mother and Mr B and that of Dr I, there is support for that view or at the very least, some historical revisionism at odds with the accounts reported by them to the police on 2 April not denied in any updated sworn evidence.
There is also a lack of acknowledgment on the part of the mother that the father, an equal co-parent, would have legitimate concerns and that X’s acting out whilst in her primary care may possibly be related to what was happening in her household.
Whilst acknowledging the need to be cautious, as I have said, in effecting changes for children particularly at an interim stage, having concluded that X has a good relationship with her father, that he has the capacity to care for her on a day-to-day basis, that more time in his care is not something that would be contrary to her views, that it is unlikely to have any impacts on her important relationships with her mother, Mr B or members of the mother’s family and household and that it may possibly present as a circuit-breaker for a child who has been struggling whilst in her mother’s primary care - even though I cannot on the evidence attribute her difficulties to either household - where there are no practical difficulties in terms of the parents’ residences, and where the parents will be engaging in supportive counselling and the father proposes an updated report with ongoing court scrutiny, the question I pose is whether the maintenance of the status quo and the other matters raised on behalf of the mother (in a very thorough way by Mr Bunning in submissions) pending trial - in effect in 12 months’ time – whether the factors raised by Mr Bunning are so significant that they outweigh the factors that I have considered and to which I accord weight which support a change. I have concluded that they do not.
I am further supported in this view by the recommendations of Mr K, albeit recommendations untested and by the 2006 amendments where the legislators made clear that it was in the best interests of the children that they have the benefit of significant parental engagement in terms of time and the exercise of decision-making to the maximum extent consistent with their best interests.
In the context of the history of X’s parenting, I am unable to conclude that the mother’s lack of trust of the father and the nature of their co-parenting relationship, whilst relevant, is a significant impediment to a move now to equal time.
I do not accept the submission that an order to that effect would decide the case on a final basis. That is not the test. The test is what is in the best interests of X. Interim orders are often changed at a final hearing if the evidence warrants it, including by reducing and/or increasing time, for example. This arrangement, as I said, will be monitored by way of an updated report.
Having considered the evidence, the evidence does not allow me to conclude that X should be changing her general practitioner. Notwithstanding his (omitted) qualifications. I am not satisfied that the evidence adduced by the father warrants such a change now, notwithstanding his (omitted) qualifications.
Further, in relation to the issue to do with the mother being afforded an opportunity to care for the child if the father is unavailable to do so for four hours, I am not prepared at this interim stage to make that order. It is not an unreasonable order to seek, save for the fact that the mother has already identified on her material a lack of trust and inability to negotiate with the father. These are early days. The parties are yet to engage in counselling. I shall address the issue of FDR shortly, however at this point in time it is important that orders are clear. Based on my findings, there is no evidence to suggest that the father would not make appropriate, sensible arrangements for this child, if for some reason he was not able to care for her for more than four hours, and did not feel, as he may well, that it was appropriate to contact the mother to seek her assistance in that regard.
The father seeks on an interim basis a continuation of an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility, although that was not pressed in oral submissions and written submissions.
Pursuant to section 61DA of the Act, 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.
The presumption does not apply in the circumstances set out in subsection (2) which include, 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 family violence.
Based on my findings, I find that the presumption in favour of equal shared parental responsibility does not apply as a consequence of the incident on 2 April 2013, there being reasonable grounds to believe that Mr B engaged in family violence.
However, I have determined, based on a best interests inquiry - and notwithstanding these being interim proceedings - that I should make an order for equal shared parental responsibility at an interim stage – the best interests of X at this stage requiring a continuation of the 2007 order in that regard, thus enabling X to benefit from the input of both parents.
Having made that order, pursuant to section 65DAA of the Act I must consider whether X spending equal time with each of her parents would be in her best interests and whether that would be reasonably practicable.
I have concluded that such an order is in X’s best interests for all of the reasons that I have discussed.
I have further concluded, having regard to the provisions of subsection (5) of section 65DAA that the parenting structure is reasonably practicable. The parents live in reasonably close proximity. Whilst their co-parenting relationship may not be optimal, historically they have been able to make decisions for X. Supported by Mr K’s report, I place weight on that history at this interim stage.

Orders

I accordingly make the orders sought by the father.
I shall hear from everybody when time is to start. The changeover is to be on a Monday on the father’s proposal.
I am proposing to continue the restraints.
I decline to make an order for a change of the general practitioner.
I propose to make all of the other orders that have been agreed, including X attending upon the nominated professional.
In relation to the FDR issue, whilst the mother was concerned about engaging in FDR, and I have taken on board all of Mr Bunning’s submissions in that regard and her deposition that she feels intimidated by the father and notwithstanding all of the other reasons she advances on her evidence, I am not convinced that with the support of the personal counselling both parties will engage in, to which the mother has agreed, and the involvement of a trained facilitator, that it is not a process that I should decline to order at this stage.

In the event that the parents are in dispute with respect any long-term decision-making, on the recommendation of the report writer, he is suggesting that the parents meet on two to four occasions a year. I shall take some further submissions shortly. However, I am satisfied that that process should be made available to the parties. For example, the email from Mr B to the father – I think it was in March 2013, which the father annexes to his first affidavit – where Mr B indicated that communications needed to be directed to him and not the mother, he indicated that that was at the mother’s request. It suggests that the mother was open to the use of a mediator with the father.
Further and based on my general understanding of that process, I am not satisfied that the concerns that the mother raises on the material cannot be appropriately responded to by an appropriately qualified family dispute resolution practitioner.
In relation to the issue of “Daddy Mr B”, I do not intend to make that order. However, I shall take some submissions as to whether or not these parties should be required to engage in a step-parenting course or post orders parenting program to assist them with this issue. It hopefully might all be resolved before the matter goes to trial, if it does go to trial, and then we shall get an updated report before trial.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully

Associate:

Date: 7 March 2014

[2014] FCCA 427

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies