Pedlingham & Ibbott

[2007] FamCA 537

FAMILY COURT OF AUSTRALIA

PEDLINGHAM & IBBOTT [2007] FamCA 537

FAMILY LAW - CHILDREN – Final parenting orders

Family Law Act1975, s.60B(1), s.60CC, s.60CC(1), s.61DA, s.65DAA(1), s.65DAA(2)

MOTHER: MS PEDLINGHAM

FATHER: MR IBBOTT

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: MLF 86 of 2006

DATE DELIVERED: 23 May 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 23 May 2007

REPRESENTATION

COUNSEL FOR THE MOTHER: The mother consenting in writing

SOLICITOR FOR THE FATHER: No appearance by the father

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Terrill

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Loretta Terrill

Orders

1. That the Father and the Mother have equal shared parental responsibility for the Child of their relationship, namely a son born ... June 2000 (hereinafter referred to as the child).

1. That the Father and Mother make a genuine effort to come to a joint decision in the event that issues arise in relation to the child concerning:

(a)       The child’s education;

(b)      The child’s health; and

(c)The child’s living arrangements.

1. That the child live with the Mother.

1. That the child spend time with the Father at all times as agreed, but failing agreement as follows:

(a)During the NSW Gazetted June/July school holidays occurring year to year, from 10.00 am on the Saturday immediately following the cessation of the second school term, for a period of two weeks, concluding at 10.00 am on the Saturday immediately prior to school resuming for the third term.

(b)During the Christmas School holidays (NSW Gazetted) as follows:

i.For the first half in 2007/20 08 and each alternate year thereafter, commencing at 10.00 am on the Saturday immediately following the cessation of school for the year and concluding at 10.00 am on 13 January in the following year; and

ii.For the second half in 2008/2009 and each alternate year thereafter commencing at 10.00 on 13 January of the new year and commencing at 10.00 on the Saturday immediately preceding the commencement of the new school year.

1. That for the purpose of the time the Father spends with the child, he shall collect the child from the Maternal Grandparent’s residence, namely the residence of Mr and Mrs C, currently living at G (or such other location as agreed between the parties) at the commencement of the time and shall return the child to the same residence at the conclusion of the time (or such other place as agreed between the parties).

1. That the party with whom the child is not living with can telephone the child between 6.00 pm and 7.00 pm each Wednesday for a period of 20 minutes, with the party with whom the child is not living with to initiate the call.

1. That the Parties not consume alcohol or drugs to excess whilst the child is in their care.

1. That whilst the child is living with the Mother, he shall not be left in the care of Mr B and the Mother must always be present when the child is in the presence of Mr B.

1. That whilst the child is living with the Father he shall not be left in the care of Ms V and the Father must always be present when the child is in the presence of Ms V.

1. That the Parties not physically discipline the child or permit any other person to physically discipline  the child.

1. That neither party shall criticise the other party in the presence of the child and they shall use their best endeavours to prevent any other person from criticising the other party in the presence of the child.

1. That the Father and the Mother shall provide to the other and keep the other party informed of a telephone number and residential address whereby he or she can be contacted to discuss the child or to talk to the child when the child is living with the other party.

1. That the Mother authorise any school that the child attends to release such information concerning the child’s education or school related events to the Father at his request and at his expense.

2. That the Father and the Mother shall notify the other of the name, address and telephone number of any medical practitioner or any other professional that they take the child to, and by this Order that medical practitioner or other professional is authorized to release information to the other party concerning the child’s health or welfare.

1. That the Father and the Mother shall notify the other party of any medical emergency or medical condition concerning the child as soon as possible after its occurrence.

1. That all extant applications be otherwise dismissed.

IT IS DIRECTED

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That all documents produced pursuant to subpoena filed herein be returned forthwith to the party or institution producing same.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 86 of 2006

MS PEDLINGHAM

Mother

And

MR IBBOTT

Father

REASONS FOR JUDGMENT

1. This case concerns the parenting arrangements for the parties’ son, who was born on 13 June 2000.  The child is almost seven.

PARTIES 

1. The child’s parents are Ms P and Mr I.  The father is 37, the mother 34.  In the course of a relationship in 1990, the mother became pregnant.  By the time she gave birth to a son, D, in February 1991, they had separated.  The father has had very little contact with D. 

2. The mother subsequently formed a relationship with Mr C, with whom she had a daughter, G, in July 1992. 

3. In 1998 the mother resumed the relationship with the father and they were together for a couple of years, separating in about July 2001.  The child was born in June 2000. 

4. After separation, the mother moved with her children to L and in October 2002 formed a relationship with Mr B.  In May 2004, she had another daughter, C, with him.  Mr B has been diagnosed with bipolar disorder. 

5. The father has, he told the family reporter, at least eight children in addition to D and the child.  He told Mr M he has some ad hoc contact with them, but he takes no parental responsibility for any of them.

LEGAL PRINCIPLES 

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

EVIDENCE

1. The father has not appeared.  In fairness to him, I have read the affidavit sworn and filed by him earlier in the proceedings.  Also in evidence is a family report, prepared by Mr M, which includes the history given to him by both parties; that is the only evidence I have of the father’s present circumstances and proposals.  The independent children’s lawyer has sworn an affidavit deposing to very recent communications with the father, to which I will refer later.

SHORT HISTORY

1. In February 2003, the child went to stay with his father, as the mother and Mr B were moving into a new house.  He remained there.  The parties disagree on the reasons for that.  It is clear that the father alleged then that Mr B had been physically abusive to the child.  He based the allegations on comments by a friend, from whom there is no evidence, and alleged statements made by the child, when the chld could have been no more than two.

2. The father and the child moved frequently over the following 18 months.  The father provided no information whatsoever to the mother about the child, or their whereabouts, and she had no contact with him at all.  In 2005, the mother learnt that the child was living with his paternal grandparents in L.  She contacted them and with their consent, the mother visited him.  The visits continued over some six months, in which period the father lived there only intermittently.  He returned on a more permanent basis late in 2005, and stopped the mother's visits. 

3. The mother then filed an application in the Local Court, which was transferred to this Court.  Interim orders were made on 15 June 2006 providing for the child to live with his father and to spend alternate weekends and half school holidays with his mother.  The orders provided that the child not be brought into contact with Mr B.  By then, she and Mr B had separated, but she saw him in the course of his contact with their daughter. 

4. As Mr M noted, this did not work well.  Within weeks the father alleged that Mr B had been present with the mother and the child on one occasion in the July school holidays; he stopped all contact.  On 27 October 2006, the court ordered its resumption.

5. In November 2006, without notice, the father relocated with the child to Canberra, some 375 kilometres from G, where the mother lives.  Such changeovers as occurred were at T, which is about 150 kilometres from G and 220 kilometres from Canberra. 

6. The child has had a lot of contact with extended family on both sides.  His father now lives with Ms V and her six-year-old son, X, either - as the father told Mr M - in Ms V's mother's home in F or - as the child told Mr M and the mother alleged - in a mobile home in a caravan park in E.  For years the father has relied on his parents, extended family and friends and, more recently, Ms V, for care of the child.  Mr M met Ms V; he said she presented as a sensible and competent woman.  On the father’s history, the Court could not make assumptions about the potential longevity of the relationship.

DISCUSSION

1. A number of constraints must be taken into account.  It is probable there is an apprehended violence order naming the father as defendant, in which the applicants were described by the father as friends of the mother.  He told Mr M that he was only indirectly involved in the events which gave rise to that intervention order.  I cannot say what they were.

2. When the mother saw Mr M, her driver's licence had been suspended.  Given the distance between the parties’ homes, that has the capacity to impact.  

3. Mr B has a reputation, on the material well-founded, for his hostile attitudes to Aboriginal people.  The child has been identified as Aboriginal by his father; his father identifies as an Aboriginal through the Aboriginality of his step-father.  The father did not grow up with any particular identity or connection with Aboriginal culture.  Mr M noted that while the father displayed a respect for it, there was no strong sense of participation or identification with any particular group.  The father’s son, D, does not identify as an Aboriginal.  I cannot say if any of his other eight children identify as Aboriginal.  The mother's step-father, who is very supportive of her and the children, is Aboriginal and it is probable he provides a counter to any racist attitudes of Mr .

4. D spoke to Mr M of strong memories of his father physically abusing his mother when they lived together.  D lived very briefly with the father, after the child went to live with him in early 2003.  He told Mr M that during that period his father was frequently drunk, the police were called often because of fighting and drinking, and many different women were in the home.  D is a troubled teenager.  He was diagnosed with ADHD when young, and prescribed medication from the time he started school.  At sixteen, he has now dropped out of school and is not working.  Interestingly, when he spoke with Mr M, he was very concerned about the child and showed insight into the potential for his brother to be misled by poor sibling role modelling.  He spoke of needing to change his behaviour.  When seen with the child, their interaction was affectionate and appropriate, and he was very encouraging, and appropriately directing, with the child.

5. Mr M reported that the child’s confidently expressed wish was to live with his mother and to visit his father.  In interaction, he showed no fear of his mother, his father or Mr B.  Mr M's opinion, on which I place weight, is that the parties’ son is a child who has learnt to cope stoically with separations, change and stress.  Mr M's evidence is that the child has learnt not to expect that important people will be readily available.  Consequently, he has a somewhat anxious and avoidant attachment style. 

6. Mr M was concerned that the father chose to separate the child, when the child was very young, from his primary attachment figure and to limit the mother's opportunity for contact with him.  In his opinion this demonstrated an insensitivity to the child's needs, as did his subsequent actions, when he sent the child to live with his grandmother.  I share his view that it is unlikely the father would encourage any contact between the child and the mother were the child to live with him.  Further, the court could not have confidence in the father’s capacity to parent the child in the long term.  He has a history of excessive drinking, violence and a lack of a stable home base, and he has taken no parental responsibility for at least nine other children, including D.  On the other hand, he does have a genuinely warm relationship with the child.

7. For her part, the mother is managing two teenagers, one of whom is disturbed, and a toddler, in addition to the child.  As Mr M noted, that would be hard work and demanding for two capable and confident parents.  The father attributed responsibility for all of D's problems to the mother.  However, Mr Mr's evidence is that responsibility should also be attributed to father.  D witnessed the violence his father perpetrated against his mother, the chaotic and unsettled life of his father in 2003 and reasonably, feels rejected by his father.

8. On balance, Mr M’s recommendation was that the child should live with the mother and have time with his father.  After Mr M's report was released, the independent children's lawyer discussed the recommendations with the parties, and supported it as a reasonable resolution.  A positive response was received from each.  Minutes of proposed consent orders were prepared and signed by the mother and by the independent children's lawyer.  They were sent to the father in Canberra, but were not returned.  He acts for himself.

9. In her affidavit the independent children's lawyer deposed to a telephone conversation she had with the father yesterday.  She pointed out that the case was listed in court today and inquired about his signing of the orders.  She deposed that he said words to the effect, "It's too hard," and that he started work at 6.00 and did not finish until 3.30.  On ascertaining that he worked in the Canberra central area, the independent children's lawyer explained to the father that he could go to a court or a police station or a justice of the peace, sign the orders and have his signature witnessed.  He responded: "It's too hard, I don't know when I'll get around to it." 

10. On being reminded that the matter was listed today, and asked directly whether the orders would be signed by then, he said, "No, I don't know when I'll get around to it."  The independent children's lawyer then said to the father, "If you are not prepared to cooperate in having the orders signed, then you will need to either appear in person in court tomorrow, or alternatively, contact the court and arrange for a telephone link-up, as you did on the last occasion," to which the father replied, "Why should I bother?"  The independent children's lawyer said, "Can I take it from what you have just said that you will not sign the orders, nor will you cooperate by appearing in court, even by telephone link-up?" to which he replied, "No, I can't be bothered."  The independent children's lawyer then advised the father that she would be asking the judge to make the proposed orders in his absence.

11. That is a telling illustration of the father’s lack of genuine commitment to this little boy. 

12. The evidence supports a finding that anything close to an equal residential arrangement would be unworkable in this case and not in the child's best interests.  The parties have no capacity to communicate or cooperate, and that is unlikely to change.  They live far apart.  Each grapples with problems but only the mother has demonstrated a sustained commitment to her son.  The best result for the child is for him to live with his mother and spend some weekend and holiday time with his father.

13. The orders proposed by the independent children’s lawyer and the mother provide for the parties to have equal shared parental responsibility for the child.  In those circumstances, I do not propose to make any order to the contrary.  Given the father's record with his other children, and his recent conduct, the court may be sceptical about him playing a truly meaningful role in the child’s life, but these orders will give him the opportunity to play that role. 

14. I am satisfied that the orders proposed are in the best interests of the child. I make them with the consent of the mother and the independent children's lawyer, but not with the consent of the father.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate:

Date:  6 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PEDLINGHAM & IBBOTT