NOVAK & NOVAK

[2011] FMCAfam 624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NOVAK & NOVAK [2011] FMCAfam 624

FAMILY LAW – Interim property orders – parents reached informal parenting agreement – family violence – extensive alcohol consumption and mental health issues.

Family Law Act 1975, s.65DAA

Goode & Goode (2006) FLC 93-286

Applicant: MR NOVAK

Respondent: MS NOVAK

File Number: WOC 88 of 2011

Judgment of: Altobelli FM

Hearing date: 31 May 2011

Date of Last Submission: 31 May 2011

Delivered at: Sydney

Delivered on: 3 June 2011

REPRESENTATION

Solicitors for the Applicant: Dawson Lawyers

Solicitors for the Respondent: Rebecca Bailey & Associates Family Law Solutions

Independent Children’s Lawyer: Rossi Simicic Lawyers

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Child [X] born [in] 2006 live with the Mother.

2. The Child spend time with the Father each Saturday from 10.00am to 6.00pm and each Thursday from 5.30pm to 7.30pm.

3. For the purpose of facilitating changeover pursuant to Order 3, that:

   (a)The Mother shall deliver the Child to the residence of the Maternal Grandparents at [address omitted] fifteen minutes prior to the commencement of contact and shall collect the Child fifteen minutes after the conclusion of contact;

   (b)The Father shall attend at the residence but shall remain by the car;

   (c)The Mother shall direct that the Maternal Grandparents release the child from the residence and supervise her till she reaches the Father or the Father’s parent’s car;

   (d)The Father shall not communicate with the Maternal Grandparents at changeover;

   (e)The Mother shall direct the Maternal Grandparents not to communicate with the Father;

   (f)Any information regarding parenting matters be entered into a Communication Book to be exchanged at changeover and both parents shall ensure that all entries in the Communication Book relate to the Child only and are respectful to the other parent.

4. Both parents be restrained from denigrating the other parent in the presence or within hearing of the Child or within the communication book and shall use their best endeavours to remove the Child from the presence or hearing of any other person who may be denigrating the other parent.

5. The parties be restrained from communicating with one another (except in a parenting emergency) other than via the communication book.

6. The Mother is to forthwith consult with her General Practitioner or Psychologist about her current mental health status, and comply with all directions given in relation to the same.

7. The Father undergo urinalysis drug testing at the request of the Independent Children’s Lawyer not more than once per calendar month and upon 24 hours notice, and that the results of such test be provided to the Independent Children’s Lawyer and the solicitor for the Mother.

8. The Father is restrained from consuming alcohol or being under the influence of the same whilst the Child.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 62G(2) of the Family Law Act1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act and the Family Consultant’s Memorandum to the Court.

2. The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.

3. The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report and any subpoena material.

4. I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

5. I DIRECT the Independent Children’s Lawyer to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.

6. The matter be adjourned to 7 November 2011 at 12:30pm for Directions in Wollongong.  The parents are to attend with their legal representatives if the Family Report is available.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 88 of 2011

MR NOVAK

Applicant

And

MS NOVAK

Respondent

REASONS FOR JUDGMENT

1. This case is about [X], who is four and half years old.  Her father is the applicant.  He lives in [W], is a [occupation omitted] and is 38 years old.  [X]’s mother is the respondent.  She lives in [S], is an [occupation omitted] and is 37 years old. The parents cohabited between 2006 and 2010.  By way of background, in mid 2010 on or after the date of separation, the parents entered into an informal, verbal, parenting plan that is described in paragraph 8 of the father’s affidavit of 13 December 2010 and paragraph 22 of the mother’s affidavit of 14 April 2011.  This parenting plan provides for a shared care arrangement and this subsisted until about November 2010.  Since then contact with the father has been limited.  On 20 January 2011 the parents agreed to interim orders for contact with the father spending time with [X] each Saturday 10:00am to 6:00pm and each Thursday from 5.30pm to 7.30pm.

2. The issue before the Court is what time [X] should spend with her father. The competing proposals are as follows. The father’s proposal is contained in his case outline and, in very descriptive terms, it is a gradual easing back into the shared care arrangement that existed in the past. The mother’s proposal is contained in her response and, again in very descriptive terms, the mother seeks to maintain the current interim orders. The applicable law in these applications is, of course, Part VII of the Family Law Act and the Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the process and applicable law.

3. The evidence before me consisted of the mother’s affidavits, the father’s affidavits, the family consultant memorandum to Court, and a substantial volume of subpoenaed documents including documents produced by New South Wales Police, [omitted] Preschool, [omitted] Pty Limited, in other words the [omitted] Medical Centre, [omitted] Hospital, the [omitted] Centre and the [omitted] Division of General Practice.  By way of uncontested facts, I think a few can be identified.  Firstly, that communication between the mother and father is extremely difficult.  Secondly, the existence and the implementation of the shared care arrangement that I have described above seems to be uncontested, and I think the third uncontested fact is that there seems to be no risk of harm to [X] associated with daytime contact.

4. Let me summarise the submissions.  The father acknowledges mutual allegations of family violence.  He emphasises the existence of a shared care agreement which was implemented and terminated unilaterally for no good reason.  He suggests that the mother’s approach to contact is motivated by a desire to punish rather than any fear which has an objective basis.  He denies the verbal, physical, and emotional abuse that is asserted by the mother.  He denies any abuse of alcohol.  He raises issues about the mother’s mental health and that she is significantly depressed and inadequately treated. 

5. On behalf of the mother, she opposes overnight time as she is concerned about the father’s alcohol abuse.  The mother asserts that she has experienced family violence and is in fear of the father.  She asserts that she was and remains the parent primarily responsible for the care of [X] and also that [X] has a nine year old sibling with whom she is closely attached.  Let me discuss some relevant issues.  There was an agreement between the parents for shared care.  The first question that might be asked in this case is, why should that not be reinstated in the graduated fashion proposed by the father? 

6. There is an argument that the shared care arrangement is the best example of what the parents themselves considered to be appropriate at that time, and it was, in fact, an agreement that was implemented.  I am satisfied that the circumstances that led to its termination were unfortunate and ill-considered actions of both parents; the father trying to do certain things, and the mother, in my opinion, perhaps overreacting.  There were no orders in place at the time and the mere making of orders will provide a much firmer foundation for enforcement. 

7. On the mother’s case, however, there is a real issue as to the fundamental appropriateness of the agreement in the first place.  On behalf of the mother it is submitted that it was an agreement that was clearly influenced, firstly, by lack of advice and, secondly, the emotional context of a very recent separation and, thirdly, the history the mother gives of having experienced family violence.  The first two reasons do not of themselves explain why an agreement entered into between parents in relation to their child should not be upheld if it is in the child’s best interests.  The third consideration, however, merits further attention because, firstly, it does go to the mother’s state of mind at the time and, secondly, it also goes to whether shared care was at the time and is now in [X]’s best interests. 

8. The mother’s evidence is that she first sought counselling in relation to abuse that she says was perpetrated by the father in September 2007, and that this was then continued in 2009 and 2010. This is corroborated by documents from the [omitted] Centre which clearly records the mother’s assertion that the father and I quote “is a heavy drinker and he yells and screams”.  Of course, the assertion does not of itself make it true, but if it becomes part of a consistent series of reports by the mother, then the mother’s allegations about the father become corroborated by these records.  This pattern of reporting by the mother is continued on the following dates.  On 30 September 2009 she reported that the father was abusive and violent when drinking.  She reported that the father yelled at her in front of the children calling her “a fucking lazy bitch”. 

9. On 13 November 2009 there is reference to the father’s criticisms of her when he is drunk and how his behaviour changes when he is not drinking.  On 11 December 2009, at the occasion of the mother’s hospital admission, there is reference again to the father’s drinking and abuse that had recommenced and in front of the children.  There is a reference to the mother feeling that she is the reason for the abuse and that the children would be better off without her.  On 15 December 2009 there are New South Wales Health Triage records that refer, once again, to a report by the mother of domestic violence in a verbal form and that she is married to an alcoholic.  On 16 December 2009 the mother reports that the father acknowledged the effect of his behaviour and drinking.  On 15 January 2010 there is a report to the mother’s treating doctor from her psychologist referring to the mother experiencing severe depression in the context of domestic violence.  

10. There is sufficient corroborative material in support of the mother’s allegations about family violence and the father’s excessive consumption of alcohol to cause real concerns in the Court’s mind about these issues, particularly in a context where the father’s denials of this are so strident. This is especially the case where there is some corroborative material indicating that the abuse occurred in the presence of the children. A number of things flow from this. Firstly, a reasonable inference to be drawn from the mother’s treating doctor’s notes is that she suffered depression for most of 2010 and was taking an antidepressant. This includes the time that she entered into the parenting agreement with the father. Secondly, the existence of abuse in the relationship contraindicates, in my opinion, a shared care arrangement for the following reasons. Firstly, I have no evidence of the impact of family violence on [X]. Secondly, the events subsequent to the parenting agreement demonstrate clearly the parents’ lack of trust and inability to communicate. And thirdly, absent are the factors described in paragraphs (b) and (c) of section 65DAA(5), such that it would not be reasonably practicable to either have equal time or substantial and significant time which, of course, is what the father’s proposal announced to.

11. Thus, the parenting agreement entered into by the mother and father was not appropriate at the time and, in my opinion, for the very same reasons is not appropriate now.  The father raises concerns about the mother’s mental health.  The evidence before me is not definitive about the mother’s current medical treatment.  The last available diagnosis is of depression for which the mother was on medication.  I note that there was a previous attempt at self harm which is well documented in the records before me.  There is reason to believe that it was related, at least in part, to the abuse suffered by the mother from the father.  In these circumstances the father can hardly use this event to support his case unless he can satisfy me that there are real and present concerns about the safety and welfare of [X].  There are none.  Even the father’s own subsequent actions confirm there are no such concerns.

12. Nonetheless, the mother’s depression is an issue in this case and I intend to order her to consult her doctor and psychologist about her mental health and to comply with all directions given.  Of course the father offers an undertaking not to drink alcohol.  I note this, but in circumstances where he has denied that it is a problem and where the evidence suggests to the contrary, the value of his undertaking is greatly watered down.  Now, drawing from these diverse strains of thought, I conclude on the interim basis as follows.  Firstly, there is a meaningful relationship between [X] and her father that can be sustained through the orders proposed by the mother.  Secondly, there has probably been family violence perpetrated by the father against the mother which may well have occurred in the presence of [X], the impact of which is yet unknown.  Thirdly, there are no relevant views to which I would give any weight. 

13. Fourthly, [X] appears to have a good relationship with both parents, but her mother seems to have been more involved in her parenting and thus probably has a stronger attachment. Fifthly, there is a poor level of communication and a high level of distrust and conflict between [X]’s parents that is hindering their capacity to parent optimally and to support [X]’s relationship with each other. The father’s consumption of alcohol and the mother’s depression are both factors potentially impacting on their capacity to parent. Sixthly, I note that neither equal time nor substantial and significant time is in [X]’s interests or is reasonably practical. For the reasons that I have articulated above, I intend to make orders in accordance with the mother’s application.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  22 June 2011