Nowell and Trueman

[2018] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOWELL & TRUEMAN [2018] FCCA 1921

Catchwords:
FAMILY LAW – Parenting – best interests of the child – conduct of parents.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA, 61DAA, 62G(2), 67Z, 68L(2)

Cases cited:

Tait & Densmore [2007] FamCA 1383

Applicant: MR NOWELL

Respondent: MS TRUEMAN

File Number: DGC 396 of 2016

Judgment of: Judge Small

Hearing date: 19 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Dandenong

Delivered on: 19 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Chia

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the Respondent: Mr Harrison

Solicitors for the Respondent: Higgins Legal

ORDERS

1. The children [X] born … 2011 (“[X]”) and [Y] born … 2014 (“[Y]”) (collectively “the children”) live with the Mother.

2. The children shall spend time with and communicate with the Father:

   a)Each Sunday from 9:00am to 12:00pm for 6 weeks;

   b)Thereafter, each Sunday from 10:00am to 4:00pm for 6 weeks;

   c)Thereafter, each Sunday from 10:00am to 6:00pm for 4 weeks;

   d)Thereafter, each weekend from 4:00pm on Saturday to 10:00am on Sunday for 4 weeks;

   e)Thereafter:

   i.Each weekend from 4:00pm on Saturday to 2:00pm on Sunday;

   ii.Each alternate Wednesday from the conclusion of school in the case of [X] and the conclusion of Kindergarten in the case of [Y], to 6:00pm commencing on the first weekend after paragraph 2(e)(i) comes into effect;

   f)At any other times as the parties might agree in writing.

3. The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother or father to or in the presence or hearing of the children or either of them, and from permitting any other person to do so.

4. The parties and their servants and agents be and are hereby restrained by injunction from discussing these proceedings with or in the presence or hearing of the children or either of them, and from permitting any other person to do so.

5. For twelve (12) hours immediately prior to the commencement of any time spent with the children (including any period during which the children live with him), and during all such time spent, the Father be and is hereby restrained by injunction from drinking alcohol to excess (having a blood alcohol content above 0.05).

6. Changeover for all time spent save for that specified in paragraph (2)(e)(ii) shall take place at Location A or such other venue as the parties might agree in writing.

7. Changeover for time spent pursuant to paragraph 2(e)(ii) shall take place at the conclusion of school (in the case of [X]) and at [Y]’s kindergarten or Location A (in the case of [Y]) at the commencement of time and at Location A at the conclusion of time.

8. Neither party shall allow any other family member or friend to be present inside Location A at the time of changeover.

9. The mother shall ensure that the children’s school or kindergarten makes available to the father, at his cost if any, all school reports, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the children or either of them and the father shall be at liberty to attend parent teacher interviews and all sporting or cultural events usually attended by parents.

10. The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the children or either of them to speak to the other about the child’s treatment.

11. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children [X] born … 2011 and [Y] born … 2014 (“the children”) be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

12. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the children’s representative file a Notice of Address for Service.

13. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

14. The Independent Children’s Lawyer be restrained from issuing any Subpoenas to the Department of Health & Human Services prior to the S.67Z report being returned to the Court.

15. The parties do forthwith all acts and things necessary to attend upon a psychologist as nominated by the Independent Children’s Lawyer for the purpose of the preparation of a report providing a psychological/personality assessment and the parties shall share the cost of the interviews and report by the psychologist equally.

16. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the children [X] born … 2011 and [Y] born … 2014 (“the children”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 31 October 2018.

17. The Family Report to deal with the following matters:

    a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

18. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

19. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

    a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    c)any family violence intervention or restraining orders currently in force.

20. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

21. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

22. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

23. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

24. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    a)a Children’s Court;

    b)a child protection authority;

    c)a State or Territory legal aid authority; and

    d)a convener of any legal dispute resolution conference.

25. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

26. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 7 November 2018 at 10:00am for Directions.

27. Both parties have liberty to apply on short notice.

28. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 396 of 2016

MR NOWELL

Applicant

And

MS TRUEMAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Trueman & Nowell comes before me today for mention in circumstances where orders were made on 3 October 2017 for supervised time between the father, Mr Nowell, and the two children of the relationship, they being [X], who was born 2011, who is now therefore seven years old, and [Y], who was born 2014, and who is therefore approaching her fourth birthday.

3. That time did not begin until, I think, March of 2018. The parties have differing views about why that delay happened, and can I say at the outset here that I cannot make findings of fact today.  This is an interim hearing. I can only make findings of fact when the parties have been in the witness box and have been cross-examined, and then I can decide who is probably telling the truth and who is not. But until that happens, I cannot do that.

4. What I must do is look at the evidence as it stands and make an order that I consider is in the children’s best interests. The reason I have to do that is because it is set out in the legislation. Section 60CA of the Family Law Act says that whenever I am making any parenting order I must take the children’s best interests as my paramount consideration. 

5. In Section 60CC, The Act then sets out 16 separate things that I need to decide or need to consider when I am deciding what is in the children’s best interests, and I could go through every one of them, but I am not going to or we would be here for some time. I will just talk about the most relevant ones.

6. The first two of those are said to be primary considerations, and in that exercise, I must balance the benefit to the children of having a meaningful relationship with both of the parents, with the need to protect the children from harm or neglect or abuse or from being exposed to family violence, and the Act says that where those two things are in balance, I must give more weight to the need to protect the child.

7. Now, in this case, there is evidence that the children have been exposed to family violence. I cannot actually stop people being nasty to each other. I cannot make them grow up and be adult. All I can do is try to protect the children, as their parents fight over their heads.

8. It is something I have said many times, and I will say it to these parents, too; whenever a relationship breaks down, there is always hurt, anger, disappointment, grief. All of those things go with the breakdown of any relationship.

9. Those things should be taken elsewhere. See a counsellor, if you need to, to deal with that. But do not take it out on the children, because you are going to be these two children’s parents for the rest of your lives.

10. This is not just about what happens in the next six weeks or the next six months. How do you want your children to remember this time in their lives?

11. You need to separate your feelings about the breakdown of the relationship and everybody has them - I am not for one moment criticising you for that - but you need to take those elsewhere, and work together as these children’s parents, because that is who you are as well, and that is certainly in the children’s best interests.

12. I have evidence before me that the children’s relationship with their mother is, of course, meaningful in every sense of the word, and that their relationship with their father is developing very well.

13. There was a period where Mr Nowell did not see the children for some time.  He has now been seeing them, supervised at a contact centre, for about six sessions, and the report is nothing short of glowing. There were a couple of glitches in the early days of those session, where Mr Nowell asked some questions which were inappropriate at the time. He very quickly stopped doing that when he was asked to.  He took the advice of the supervisor and did not do that again.

14. Some of the descriptions of him carrying [X] on his shoulders while [X] pats his head are really quite endearing, and [Y], having been very quiet and not quite sure at the beginning, because she was very young when the parties separated, seems to have taken both the lead of the father and of her big brother in understanding that this is a man who is important.  [X] certainly thinks so, so she is not going to hold back on that.  And she has been, over time, clearly becoming closer and closer to her dad.

15. The other thing, though, is that the word “meaningful” means more than that.

16. In a case called Tait & Densmore[1], Cronin J in the Family Court decided some years ago, His Honour said words to the effect that for a relationship between parent and child to be meaningful, the parent must provide a role model for the child. The parent must show the child what it is to be a citizen, to be a community member, to be, ultimately, a parent in this community, and if the parents aren’t doing that, then the meaningfulness of the relationship is not as full as it could be.

    [1] Tait & Densmore [2007] FamCa 1383

17. In this case, we have allegations of family violence that are quite severe – of physical family violence on both sides. As I said, I cannot make decisions of fact today. I cannot make findings about that. But if the parties are right about that, then these children have been exposed to family violence, and exposing a child to family violence is an act of child abuse in itself, under the definition of child abuse in the Family Law Act. It is very important that children are not exposed to conflict between their parents.

18. First of all, they see themselves as being half from mum and half from dad. If they hear dad speaking badly about mum, or mum speaking badly about dad, what they hear or what they experience is “that parent does not like the half of me that comes from the other parent”. That is what they hear. That is what they feel. So it is very important to keep adult conflicts, which are almost inevitable at the breakdown of relationships, away from the children.

19. It can really affect their sense of self. It can affect their sense of security, and witnessing physical violence, which both parties allege, can even affect their intellectual development. So I would urge you to keep that separate. So I need to weigh that up and make orders that protect the children from the conflict, but which also foster a meaningful relationship with both parents.

20. The Act then goes on to set out 14 additional considerations.

21. The first of those is the wishes of the child. Well, we do not really know what the wishes of the children are; they have not been asked yet. But certainly [X] is said to have asked in the supervisor’s hearing when he can come to his dad’s home, when he can see dad again, and seems quite eager about that.

22. It would seem that the relationship of the children – well, certainly of [X], and there is nothing to say it is not that same for [Y] – is a very close relationship with their mother. She has been their carer all their life.

23. There is a dispute about who was their primary carer during the relationship, but both children have lived with their mother all their lives, so certainly those relationships are solid.

24. And the relationship with their father has been brought back to life by the time that they have spent in the supervised contact centre, and that can only be of benefit to them if the relationship that the supervisor saw continues outside the supervision centre.

25. So that is my basic task – to balance all those things.

26. I also need to consider things like the parent’s capacity to meet the children’s needs, and as Mr Harrison told me, at the moment [Y], who will be four in a couple of weeks, is still having an afternoon sleep.  That means that the father, if he is going to have her for any time in the afternoon that is not at the centre, will have to have a place for her to sleep that is appropriate and comfortable for her, and he is going to have to, I think, understand that that is not going to go smoothly from day 1. That will be a big change for [Y]. 

27. And there is not anything in the only independent evidence I have, which is the report of the children’s contact centre supervisor, which would give the Court concern about his ability to take care of the children. 

28. The real issue here, I think, is not the parents’ ability to take care of the children, but the conflict between the parents themselves. I would have concern if either parties’ allegations about the violence is true, because I would have some concerns about the parties’ abilities to control themselves when they are around the children. But as I said, I cannot make findings of fact on that today.

29. I need to look at the parent’s attitude to their parenting, and to the child or the children themselves. And, can I say that in the last two years it has been a bit up and down in terms of Mr Nowell. He did not do what he was supposed to do; he did not go and register with the contact centre when he was told to, and he left the Court – whether by mistake or not I cannot say today but he left the Court on 30 June last year, which resulted in orders being made in his absence.

30. It must be said that if Mr Nowell did not care about these two children, he could have just left it at that. He could have just accepted that he would have time with the children when the mother agreed to it, and that would be that. He did not do that. He came back to this Court and sought orders. He has been consistent since then.

31. That was at the end of July last year, and since then, he has been consistent in wanting to spend time with the children.

32. There are allegations by the mother that she has tried to arrange time and he has not turned up or he has not been interested; there are allegations by the father that he has tried to see the children and the mother has either prevented or delayed that. Again, I am making no findings about that today.

33. When I consider all of the things that I need to consider under the Family Law Act. I am going to make the following interim orders.

    ORDERS DELIVERED

34. There is an allegation about the father’s drinking.  I am not making any finding about that whatsoever today. What I am going to do, though, is order a restraint on the father having a blood alcohol level of greater than 0.05 either during or 12 hours before he has the children, because in my view if you are too drunk to drive, you are too drunk to look after little kids.

    ORDERS DELIVERED

35. There will be a clause which allows both of you to be involved in the children’s school and kindergartens, to attend events that are usually attended by parents, and to get all information about events and reports and things like that.

36. There will be another order which requires you to notify the other if either of the children sustain any form of serious injury or illness while they are with you, and to allow any doctor who needs to treat the children to speak to the other parent and consult with the other parent.

37. I am also going to make an order for the appointment of an Independent Children’s Lawyer, because I am concerned about both sets of allegations in this matter, and as you have heard I need to take precautions here. I need to act in a cautionary manner.

1. Therefore, I am going to order that the parties each undergo a psychological/personality assessment with a clinical psychologist nominated by the Independent Children’s Lawyer and the parties shall share the cost of the interviews and the report by the clinical psychologist equally. 

   ORDERS DELIVERED

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 9 July 2018