POWERS & BANKS

[2013] FCCA 2001

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWERS & BANKS [2013] FCCA 2001

Catchwords:
FAMILY LAW – Children – Parenting Orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – best interests of the child – boy aged 7 years living with mother – where father applied to vary earlier parenting Orders made by consent on 15 August 2008 – whether change of residence in child’s best interests.

FAMILY LAW – Children – Contravention of parenting Orders – prima facie case – reasonable excuse – whether reasonable excuse made out – where Application defective – where contraventions established – where no reasonable excuse proved.

COSTS – Failure of a party to comply with previous orders of the Court.

Legislation:

Family Law Act 1975, ss.60B,60CA,60CC,61DA,65DAA,70NEA,70NEB,117

Federal Circuit Court Rules 2001, rr.15.09, 25B.04

Applicant: MR POWERS

Respondent: MS BANKS

File Number: SYC 6487 of 2007

Judgment of: Judge Scarlett

Hearing dates: 11 – 13 December 2012

Date of Last Submission: 13 December 2012

Delivered at: Sydney

Delivered on: 29 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Johnston

Solicitors for the Applicant: Nicholas Angelos & Co

Counsel for the Respondent: Mr Ladopoulos

Solicitors for the Respondent: Joseph G. Capogreco & Associates

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitors for the Independent Children's Lawyer: Marsdens Law Group

ORDERS

1. All previous parenting Orders are discharged.

2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2006.

3. The child [X] born [in] 2006 is to live with the Respondent Mother.

4. The child is to spend time with the Father as follows:

   (a)Each Wednesday during the school term from immediately after school on the Wednesday afternoon to the commencement of school on the following Thursday morning;

   (b)Each alternate weekend during the school term commencing in the second week of each fortnight from immediately after school on the Friday until the commencement of school on the following Monday morning provided that if the Monday is a public holiday then until the commencement of school on the Tuesday morning;

   (c)For half of all school holidays in a week on week off arrangement with each parent, where the Father spends time with the child from the second Friday of each school holiday period at 5:00pm until the following Friday at 5:00pm and then every second week thereafter, or as agreed;

   (d)The Father will not spend time with the child on the weekend that includes Mother’s Day in each year but in substitution the Father will spend time with the child on the weekend immediately following from immediately after school on the Friday until the commencement of school on the following Monday morning;

   (e)On the following special occasions:

   (i)From 11:00 am on Christmas Day until 11:00am on Boxing day in 2013 and odd numbered years thereafter and from 11.00am on Christmas Eve until 11.00am on Christmas Day in 2014 and even numbered years thereafter;

   (ii)From 12:00 noon until 6:00pm on New Year’s Day in each year;

   (iii)From 1:00pm until 6:00pm on Greek Orthodox Easter Sunday in 2014 and all even numbered years thereafter and from 9:00am until 1:00pm in 2015 and all odd numbered years thereafter;

   (iv)On the weekend that includes Father’s Day in each year from immediately after school on the Friday until the commencement of school on the Monday morning;

   (v)On the Father’s birthday being [date omitted] from 12:00noon to 6:00pm if the day falls on a weekend when the child would not otherwise be spending time with the father and from immediately after school until the commencement of school the following morning if the day falls on a day when the child is required to attend school;

   (vi)On the child’s birthday being [date omitted] from 12:00noon to 6:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Father and from immediately after school until the commencement of school the following morning if the day falls on a day when the child is required to attend school;

   (vii)On the paternal grandmother’s birthday being [date omitted] from immediately after school until 7:00pm if the day falls on a school day or for a period of three (3) hours if the day falls on a weekend when the child would not otherwise be spending time with the Father; and

   (viii)On the paternal grandfather’s birthday being [date omitted] for a period of three (3) hours if the day falls on a day when the child would not otherwise be spending time with the Father.

5. Notwithstanding the provisions of the above Orders, if the Mother’s birthday being [date omitted]  falls on a day when the child would otherwise be spending time with the Father then the Father’s time with the child will be suspended for an agreed three (3) hour period.

6. If the child’s birthday being [date omitted] falls on a weekend when the child would normally be spending time with the Father then the Father’s time with the child will be suspended from 12:00noon to 6:00pm on that day.

7. If the maternal grandmother’s birthday being [date omitted] falls on a weekend when the child would normally be spending time with the Father then the Father’s time with the child will be suspended for an agreed period of three (3) hours.

8. If the maternal grandfather’s birthday being [date omitted] falls on a weekend when the child would normally be spending time with the Father then the Father’s time with the child will be suspended for an agreed period of three (3) hours.

9. All changeovers between parents that take place immediately after school or at the commencement of school will take place at the child’s school with the Father collecting the child from school or returning the child to school.

10. All other changeovers are to take place at the McDonald’s Restaurant at [L].

11. The parties are each restrained by injunction from criticising or denigrating the other party or any member of the other party’s family in the presence or hearing of the child and will take all steps reasonably necessary to ensure that no third party does so.

12. The parties must ensure that the other party is notified as soon as is reasonably possible if, whilst in his or her care, the child is:

    (a)admitted to hospital;

    (b)involved in a medical emergency; or

    (c)required to take any medication whilst in the care of the other party.

13. The parties must keep each other informed at all times of their residential address and landline and mobile telephone numbers and notify each in writing within seven (7) days of any change to their address or telephone numbers.

14. The parties are restrained from discussing these proceedings in the presence or hearing of the child.

15. Neither parent is to question the child about the time the child spends with the other parent.

16. Neither parent is to use any physical punishment to discipline the child.

17. Neither parent is to administer to himself or herself any illicit drug or consume any alcohol at any time when caring for the child or for twelve (12) hours beforehand.

18. The parties must do all things necessary to enable an Australian passport to be issued to the child.

19. The parties must not unreasonably withhold their consent to the other party taking the child out of Australia for the purpose of a holiday.

20. Each parent may telephone the child on one occasion each day whilst the child is in the care of the other parent provided that such call is at a reasonable hour.

21. The parties must each ensure that the child is able to telephone the other party at all reasonable times when the child requests to do so.

CONTRAVENTION

1. The Respondent Mother did on 22 December 2010 without reasonable excuse contravene Order 8 made on 15 August 2008 in that she failed to allow the Applicant Father to spend time with the child [X].

2. The Respondent Mother did on 2 February 2011 without reasonable excuse contravene Order 8 made on 15 August 2008 in that she failed to allow the Applicant Father to spend time with the child [X].

3. The Respondent Mother did on 5 September 2010 without reasonable excuse contravene Order 8 made on 15 August 2008 in that she failed to allow the Applicant Father to spend time with the child [X].

4. The Respondent Mother did on 27 August 2010 without reasonable excuse contravene Order 8 made on 15 August 2008 in that she failed to allow the Applicant Father to spend time with the child [X].

5. All other Applications alleging contravention by the Respondent of the Orders made on 15 August 2008 are dismissed.  

6. The Mother is to enrol in and complete a post-separation parenting course as nominated by the Independent Children’s Lawyer within three (3) months from the date of these Orders.

7. Within one (1) month from the date of these Orders the Mother is to file and serve an affidavit setting out the facts upon which she seeks to rely to show cause why she should not pay the Father’s costs of the Application that she be dealt with for contravention of the Orders of 15 August 2008.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6487 of 2007

MR POWERS

Applicant

And

MS BANKS

Respondent

REASONS FOR JUDGMENT

Application

1. There are two Applications before the Court, both brought by the Father of the child [X], who was born [in] 2006. The first Application, filed on 4^th February 2011, seeks orders that the Mother should be dealt with for thirteen separate contraventions of parenting Orders that were made by consent on 15^th August 2008. The contraventions are claimed to have occurred between 22^nd December 2010 and 2^nd February 2011. Further contraventions are claimed to have taken place on 5^th September and 27^th August 2010.

2. The Father’s second Application is to discharge the Consent Orders and make orders providing that the child should live with him and spend time with his mother only under supervision.

3. Those Orders are opposed by the Mother, who proposes Orders that would continue to have the child live with her and spend time with his father.

4. The Independent Children’s Lawyer proposes that the child should continue to live with his mother and spend time with his father.

Background

1. The parties were married [in] 2005 and separated on 28^th December 2006. They were divorced by Order of this Court made on 28^th  February 2008.

2. The Father was born [in] 1969 and the Mother was born [in] 1970.

3. There is one child of the marriage, [X], who was born [in] 2006. [X] is now seven years old. He remains living with his mother.

4. There were originally proceedings in the Family Court, commenced by the Father on 14^th September 2007. Those proceedings resulted in Consent Orders made by Rose J on 15^th August 2008.

5. The Consent Orders provided that (in summary):

   a)The parties were to have equal shared parental responsibility for the child;

   b)The child would live with the Mother;

   c)There was to be a graduated program for the child to spend time with the Father each fortnight, increasing in stages from 19^th August 2008 to 22^nd June 2010;

   d)Once the child attained the age of four years the Mother would agree for the child to spend further extended periods of overnight time with the Father to adjust to school holidays once the child commenced school;

   e)Once the child commenced kindergarten in 2012 he would spend one week of each school holidays with the Father;

   f)Once the child commences primary school in 2015 (sic)[1] he would spend half of the Christmas school holidays with the Father; and

   [1] The child will turn 9 on [date omitted] 2015

   g)The child will spend time on special occasions, being:

   i)Christmas Day;

   ii)New Year’s Day;

   iii)Greek Orthodox Easter Sunday;

   iv)Father’s Day;

   v)The Father’s birthday;

   vi)The child’s birthday;

   vii)The paternal grandmother’s birthday; and

   viii)The paternal grandfather’s birthday.

6. The Father filed a Contravention Application on 4^th February 2011, claiming that the mother had contravened Order 8 of the Consent Orders on fifteen separate occasions. The Application was returnable in this Court on 2^nd May 2011.

7. On 18^th April 2011 the Father filed an Application for parenting orders, seeking that:

   a)The Consent Orders made on 15^th August 2008 should be discharged;

   b)He should have sole parental responsibility for the child;

   c)The child should live with him; and

   d)The child would spend supervised time with the Mother from 9:00am to 12:00noon each Saturday.

8. The Father also filed an Application in a Case seeking the appointment of an Independent Children’s Lawyer and the appointment of a psychiatrist as Court Expert to provide a report to the Court.

9. On the first return date, 2^nd May 2011, the parties entered into interim consent orders providing that the Father would have supervised time with the child from 9:00am to 3:00pm on Saturday 7^th May and Saturday 14^th May. They also entered into consent orders providing that:

   a)There was a prima facie case made to answer by the Mother for contravention of the Orders made 15^th August 2008;

   b)That the Mother file and serve her Notice of Child Abuse, an affidavit as to reasonable excuse for the contraventions, a Response to the father’s Applications of 18^th April 2011 and her affidavits in support by 16^th May 2011;

   c)That an Independent Children’s Lawyer be appointed;

   d)That each party forward copies of all documents upon which they would rely to Legal Aid NSW;

   e)That the Father’s Contravention Application and his Application for parenting orders should be consolidated; and

   f)Various ancillary orders

10. The Mother filed a Response and a Notice of Child Abuse or Family Violence on 16^th May 2011.

11. In her Response, the mother sought orders that:

    1. Orders 3,4,5,6,7,8,9,10,11,12,13,14,15,16,17 of the Final Orders made on 15 August 2008 with respect to the child [X] born [in] 2008 be stayed.

    2. The applicant have supervised contact with the child every Saturday 9.30 am to 3.30 pm.

    3. The applicant pay the costs for an agreed agency to supervise the contact.

    The Applicant pay the costs of the Respondent with respect to these proceedings.     

12. In the Notice of Child Abuse or Family Violence the Mother claimed:

    Physical abuse by the Father involving striking the child on arms, legs and back. The abuse often leaves bruising welts and red marks.

    1. Mr Powers being the Applicant father threatens to take the child from mother.

    2. Mr Powers being the Applicant father is creating fear by lying to mother.

13. On 19^th May 2011 the parties entered into Interim Consent Orders providing that:

    a)The Father should have supervised time with the child on Sunday 22^nd May, Sunday 29^th May and Sunday 4^th June 2011, supervised by Dial an Angel;

    b)The cost of supervision to be determined by the Court at a later date;

    c)The Father to be at liberty to exercise his time with the child at places of his choosing;

    d)That the proceedings be adjourned for an interim hearing at 10:00am on 8^th June 2011;

    e)The solicitor for the Father was to advise Legal Aid NSW of the adjourned date.

14. On 8^th June 2011 Willis FM[2] ordered by consent that an expert be appointed under Part 15 Rule 9 of the Rules. Her Honour further ordered that:

    a)The Orders of 15^th August 2008 should be resumed subject to the Father spending time with the child in the constant company of the Father’s sister or the paternal grandparents during the day and overnight in the presence of the Father’s sister;

    b)The parties were restrained from taking the child to a psychologist or a psychiatrist without the written consent of the other party or the Independent Children’s Lawyer;

    c)Changeovers were to occur at McDonald’s at [L];

    d)The Orders were to commence on the weekend of 11^th and 12^th June 2011; and

    e)The parties were restrained from discussing the proceedings in the presence or hearing of the child.

    [2] As her Honour then was

15. It was agreed between the parties that Dr R, a child, adult and family psychiatrist, should be appointed as Court Expert to prepare a report for the Court. Dr R’s report was released to the parties on 26^th March 2012.

16. On 7^th May 2012 the proceedings were listed for final hearing in December 2012.

17. On that same date, the parties entered into Interim Consent Orders providing as follows:

    1. That Orders 3 to 12 made 15 August 2008 and Order 3 made on 8 June 2011 be discharged.

    2. That the father spend time with the child [X] born [in] 2006 (“the child”) as follows:

    2.1Each Wednesday from after school Wednesday until before school on Thursday commencing 9 May 2012;

    2.2Every second weekend from after school on Friday until before school on Monday commencing 11 May 2012;

    2.3For half of all school holidays in a week on week off arrangement with the mother whereby the father spend time with the child from the second Friday of each school holiday period at 5.00 pm until the following Friday at 5.00 pm and then every second week thereafter, or as agreed.

    3. That all of the father’s time with the child in accordance with these orders and previous Orders is to be unsupervised and does not require the company of any other person.

    4. That the father pick up and drop off the child at school at the beginning and end of his time set out in Orders 2.1 and 2.2 herein, and all changeovers shall occur at the McDonalds restaurant at [L].

    5. That neither party denigrate the other party in front of the child nor allow any third person to do so.

    6. That neither party question the child about the time that the child spends with the other parent.

    7. That neither parent use any physical punishment towards the child.

    8. That neither parent use any drugs or alcohol when caring for the child.

    9. That both parents obtain counselling in relation to their family relationships and the parenting situation, including grief counselling for the mother in relation to the loss of her brother, [N], and that the mother encourage the maternal grandparents to also obtain grief counselling in relation to the loss of their son, [N].

    10.That both parties attend a recognised post separation parenting course.

18. The Final Hearing took place on 11^th to 13^th December 2012. On 11^th December 2012 the parties entered into the following Interim Consent Orders:

    1. That the order of the Court made 7 May 2012 be varied to provide:-

    1.1that the child [X] born [in] 2006 spend time with the father from 4pm on 24 December 2012 to 3pm on 25 December 2012; and

    1.2that the child spend time with the mother from 2pm to 6pm on 1 January 2013.

Orders Sought

1. The Father maintained his position that there should be a change of residence as sought in his Application filed on 18^th April 2011. That Application seeks:

   a)That the Orders made on 15^th August 2008 should be discharged;

   b)That the Father have sole parental responsibility for the child;

   c)That the child live with the Father;

   d)That the child spend supervised time with the Mother each

   e)Saturday from 9:00am to 12:00 noon; and

   f)That the Mother arrange for a supervisor from Dial an Angel at her expense.

2. In the alternative, the Father seeks a longer holiday time with the child.

3. The Father also seeks that the Court should find that the contraventions are made out and that the Mother did not demonstrate a reasonable excuse.

4. The Mother seeks the orders that are set out in the Minute of Proposed Orders handed up by her counsel on 12^th December 2012. Those orders would provide that:

   a)All previous parenting Orders would be discharged;

   b)That the parents should have equal shared parental responsibility for the child;

   c)That the child would live with the Mother;

   d)That the child would spend time with the Father:

   i)During the school term, from after school on Wednesday until Thursday morning in the first week, from after school of Friday until before school on Monday in the second week and from after school on Wednesday until 7:00pm; and

   ii)During the school holidays, in a week on/week off arrangement from 5:00pm o Friday to 5:00pm on the following Friday; and

   iii)On special occasions, being Christmas day, New Year’s Day. Greek Orthodox Easter Sunday, Father’s Day, the Father’s birthday, the child’s birthday, the paternal grandmother’s birthday and the paternal grandfather’s birthday; and

   iv)Other ancillary orders.

1. The Independent Children’s Lawyer submits, in a Minute of Order handed up on the last day of the hearing,  that:

   a)All previous Orders should be discharged;

   b)The parties should have equal shared parental responsibility for the child;

   c)The child should live with the Mother;

   d)The child should spend time with the Father:

   i)Each Wednesday from after school until before school on Thursday;

   ii)Each alternate weekend from after school on Friday until before school on Monday, extending to 6:00pm on the Monday on a long weekend or including Friday from 6:00pm the night before;

   iii)For half of the school holidays in a week on and week off arrangement;

   iv)The Father would not spend time with the child on the weekend that includes Mother’s Day;

   v)The Mother would not spend time with the child on the weekend that includes Father’s Day;

   vi)Changeovers would be at school where appropriate or otherwise at McDonald’s at [L]; and

   vii)Non-denigration injunctions.

The Contravention Application

1. The Father’s Application that the Mother should be dealt with for contravention of the Orders made by the Family Court on 15^th August 2008 was agreed to be heard concurrently with the Father’s Application to vary the parenting Orders.

2. The Father states in his Application that the mother has contravened Orders 1 and 8 which were made by consent on 15^th August 2008.

3. Order 1 provides:

   That the parents have equal shared parental responsibility for the child [X] born [in] 2006 (“the child”).

4. Order 8 provides:

   The parties shall do all acts and things necessary to ensure that the child spends time with the father as follows commencing from Tuesday 22 June 2010 until the time the child commences school on a fortnightly rotation:

   Week 1

   (a)Wednesday from 5.00 pm to 7.00 pm or if the child has commenced pre-school Wednesday from the conclusion of preschool

   Week 2

   (a)    Wednesday from 5.00 pm to 7.00 pm

   (b)Friday from 5.30 pm to Sunday 5.00 pm or if the child has commenced preschool Friday from the conclusion of preschool to Sunday 5.00 pm.

5. The Application describes the contraventions claimed. Paragraph 7 of the Application states:

   Date 22/12/2010 to 2/2/2011 (13 occasions of time I am to spend with the child)

   Time All hours that the child is to spend with me during those periods

   Place Property E, NSW

   Statement of the alleged contravention The Respondent mother without reasonable excuse or explanation refused to allow the applicant father to spend time with the child [X].

6. The next count is described in paragraph 9 of the Application:

   Date 05/09/2010

   Time 9.30 am

   Place Property E, NSW

   Statement of the alleged contravention The Respondent mother without reasonable excuse or explanation refused to allow the applicant father to spend time with the child [X].

7. A further contravention is alleged to have occurred on 27^th August 2010, where the Father claims that the Mother contravened Orders 1 and 8. The Father claims in the Application that on 27^th August 2010 at 5:30pm at Property E, NSW.

   The Respondent mother without reasonable excuse or explanation refused to allow the applicant father to spend time with the child [X].

   The Respondent mother failed to notify the Applicant Father of a father and son event for father’s day at the child’s pre-school and had the maternal grandfather attend in lieu of the Applicant Father.

8. The Application is supported by an affidavit of the Father affirmed on 3^rd February 2011.

9. In that affidavit, at paragraph [22], the Father sets out details of the contraventions that he claims have occurred in paragraph 7 of the Application:

   Since 22 December 2010 the mother has breached the orders on the following occasions by failing to deliver [X] to me to spend time with me without reasonable excuse:

   (a)     Wednesday, 22 December 2010 5pm to 7pm

   (b)     Saturday, 25 December 2010 10am to 2pm

   (c)     Wednesday 29 December 2010 5pm to 7pm

   (d)Friday 31 December 2010 5.30pm to 2pm Saturday, 1 January 2011

   (e)Saturday, 1 January 2011 6pm to 5pm Sunday 2 January 2011

   (f)     Wednesday, 5 January 2011 5pm to 7pm

   (g)     Wednesday 12 January 2011 5pm to 7pm

   (h)Friday, 14 January 2011 5.30pm to 7pm Sunday, 16 January 2011

   (i)     Wednesday, 19 January 2011 5pm to 7pm

   (j)Thursday, 20 January 2011 – 2 hour period for paternal grandfather’s birthday

   (k)     Wednesday, 26 January 2011 5pm to 7pm

   (l)Friday, 28 January 2011 5.30pm to 7pm Sunday, 30 January 2011

   (m)    Wednesday, 2 February 2011 5pm to 7pm[3]

   [3] Affidavit of  Mr Powers 3.2.2011 at paragraph [22]

10. The Father goes on to describe at paragraph [22] subparagraphs H to K an incident that occurred on Father’s Day, 5 September 2010, where the Mother refused to allow him to take the child out at 9:30am. The Father went around to [omitted] Police Station to report the incident. Police officers attended the Mother’s residence, spoke to the Mother “and after approximately thirty minutes the police convinced the Respondent Mother to hand [X] to me to spend Father’s Day”.[4]

    [4] Affidavit of Mr Powers 3.2.2011 at [22] H-J

11. At another paragraph, also marked as K in the affidavit, the Father described how on Friday 27^th August 2010 he attended the Mother’s home at 5:30pm to collect the child. He deposes that the Mother “started screaming in front of [X] saying to me:

    “[X] hates you and he is scared of you and doesn’t want to come with you. You are a fucking useless father. You lie to him you are a liar”.

    The Respondent mother grabbed [X] in a rough manner by the arm and said to [X] directly in my presence: ‘Tell dad to come tomorrow and pick you up at 10.30 am”.[5]

    [5] Ibid page 11 [22[K

12. The Father went on to depose that, when he collected the child the following day, the child said to him that he was sad because the Father had not taken him to father and son night at the child’s pre-school. The Father later ascertained that the event took place on the previous Friday evening, when the Mother had refused to let him spend time with the child.

13. In the Consent Orders of 2 May 2011, the Mother conceded that there was a prima facie case to answer in respect of the contraventions claimed by the Father in his Application. Notwithstanding this concession, it is important to specify what alleged contraventions the Mother has in fact conceded that require her to answer.

14. The Application is defective in the way it specifies some of the claims. It is not correct in an Application to allege thirteen separate contraventions of an order between two specified dates without particularising all of the dates alleged. A respondent to an Application must know from the Application itself what allegations are being made, as the Respondent should be asked whether he or she wishes to admit or deny the allegations (rule 25B.04).  The respondent should not have go into the supporting affidavit in order to find out what he or she is supposed to have done, and when.

15. The fact is that the claim of thirteen contraventions of Order 8 only specifies two of the allegations, on 22^nd December 2010 and 2^nd February 2011, even though the supporting affidavit refers to another eleven dates. The Respondent has conceded that she has a case to answer in respect of those two allegations.

16. The Father has claimed that the Mother failed to comply with Order 8 on 5^th September 2010 and the Mother has conceded that she has a case to answer in respect of that allegation.

17. The final claim, alleging a contravention of both Orders 1 and 8 on 27^th August 2010, is problematic. It is certainly the case that there is a clear allegation that the Mother contravened Order 8 on 27^th August 2010 by refusing to allow the Father to spend time with the child, but it is difficult to see how a failure by the mother to inform the Father of a function at the child’s pre-school constitutes a breach of Order 1, which is the Order that provides that the parties should have equal shared parental responsibility. Order 1 does not of itself clearly require a party to do or not to do a specific thing.

18. However, there is a case for the Mother to answer in respect of an allegation that she refused to allow the Father to spend time with the child in contravention of Order 8.

19. The Mother can be taken to have conceded four separate contraventions of Order 8 made on 15^th August 2008 on the following dates:

    a)22^nd December 2010;

    b)2^nd February 2011;

    c)5^th September 2010; and

    d)27^th August 2010.

20. It is for the Mother to prove that she had a reasonable excuse for each of the contraventions (Family Law Act 1975 (Cth), s.70NEA(1)(c)).

Evidence

1. The Father relied on the following:

   a)his affidavit of 3^rd February 2011, in support of the contravention application;

   b)his affidavit of 15^th April 2011, in support of the parenting application;

   c)his affidavit of 23^rd November 2012;

   d)the affidavit of his father, Mr P, of 22^nd November 2012; and

   e)the affidavit of his mother, Ms P, of 22^nd November 2011.

2. The Father gave oral evidence and was cross-examined.

3. It was the Father’s case that the Mother commenced refusing to allow him to spend time with the child from 22^nd December 2010 on (although in his earlier affidavit he referred to incidents on 27^th August and 5^th September of that year. He deposed that he did not see his child again until May 2011, after he had commenced proceedings in this Court. He complained about the fact that his time with the child had to be under supervision. He deposed that he consented to supervision only so that he could have an opportunity to spend time with his son. He denied the allegations of abuse that the Mother had made against him, saying that they were “unfounded”.[6] 

   [6] Affidavit of Mr Powers 23.11.2012 at paragraph [25]

4. The Father deposed that on five occasions between 7^th May and 4^th June 2011 he had spent time with his son under supervision at a cost to him of $625.00 on each occasion, a total of $3,125.00.[7] He also stated that he had to pay five report fees, each of $137.50, in relation to attendances by Dial an Angel and that he considered that the Mother should reimburse him for these expenses, which amount to a total of $3,812.50.[8]

   [7] Ibid at [31]

   [8] Ibid at [32]-[34]

5. The Father also deposed that after the interim hearing on 8^th June 2011, where Federal Magistrate Willis was not satisfied that he posed an unacceptable risk to the child or that there was a need for supervision, he agreed to an order that his parents or his sister would be present when the child was spending time with him.

6. The Father also complained that the Mother did not inform him about significant matters in the child’s life, such as an open day at the child’s new school, social arrangements, his first soccer game and an occasion on 30^th January 2012 when the child had to undergo surgery. 

7. The Mother relied on her affidavits of 13^th May and 16^th May 2011. The latter affidavit did little more than state that she had taken the child to a clinical psychologist, one Ms C, and she annexed copies of clinical notes and assessments of Ms C. The psychologist did not depose to an affidavit and did not give oral evidence.

8. The Mother deposed in her affidavit of 13^th May 2011 that:

   I admit breaching the parenting orders that are in place, but I believe that I have no other options as the safety and well being of [X] is[9]an overriding concern, and in the best interest of [X].[10]

   [9] sic

   [10] Affidavit of Ms Banks 13.5.2011 at paragraph [8]

9. It is the Mother’s case that the Father’s care of the child had deteriorated, as the child was arriving home late, unwashed and unfed from his father’s care. The Mother deposed that since the child began spending time with his father his behaviour had changed drastically:

   He is exhibiting behavioural problems such as anger, anxiety, sleeplessness, nightmares, constant running to the toilet and vomiting.[11]

   [11] Ibid at [9]

10. The Mother also deposed that the child would often return home from spending time with his father overnight with bruises on his arms and legs and he commenced to refuse to go and spend time with his father. She also deposed that the Mother of one of the child’s school friends told her that her son had said that the child had told him that his father hit him and kicked him. The Mother stated that the child first refused to go to his father on 30^th July 2010.

11. The Mother referred in her affidavit to the Father having entered into a relationship with woman named Ms S, who had a son aged about 5 from a previous relationship. Ms S told the Mother that she and the Father had separated in June 2009. 

12. In her cross-examination by Mr Johnston of counsel, who appeared for the Father, she admitted the breaches of the Orders but claimed she had a reasonable excuse. She said she withheld the child from spending time with the Father because she had no other options to ensure the child’s safety and well-being.  She said that she had gone to Legal Aid but was told that she had no chance of coming to court and seeking orders suspending the Father’s time with the child.

13. The Mother said that she took the child to see Ms C, the clinical psychologist. On a referral from her general practitioner. She told Ms C her concerns for the child because of mental and emotional abuse by the Father.

14. However, the Mother said that physical abuse was no longer happening and things were “going OK”. She said it was in the child’s best interests to have a good relationship with both parents and that both parents were vital in a child’s life.

15. The only other witness to give oral evidence was Dr R, the Court Expert who had prepared the Report.

The Court Expert’s Report

1. Dr R prepared a report for the Court. For the purposes of his report, he interviewed the Father, the Mother, the Mother’s brother, her parents and the child. He also spoke to the Father’s sister on the telephone.

2. Dr R reported that the Mother told him that there were major problems about the name to be given to the child. They had named the child [X], after the Mother’s brother [N] who had died from [omitted] in 2001 at the age of 27.

3. The Mother expressed concern to Dr R about the Father “brainwashing” or physically abusing the child. He reported:

   She said that she wanted there to be supervision of contact until the child was perhaps 12 years of age or when [X] is at an age where he can confidently talk about what problems may occur….She believes that there should be constant supervision without overnight contact. She didn’t think that Mr Powers’ sister was reliable.[12]

   [12] Report page 7 lines 221-223, 236-238

4. Dr R reported the child as saying to him that his father had said that he would be staying with him (instead of his mother) and “used to hurt” him…”One time he pinched me”.[13]   

   [13] Ibid lines 252, 255-256

5. The Father told Dr R that his relationship with the Mother became problematic after the birth of the child. He denied that he and his parents had opposed the child being called [X].

6. The Father described having had a relationship with Ms S, which led to the birth of a son on [omitted] 2010. Ms S had apparently returned to her previous partner. At the time of the interview, the Father was not seeing the child from that relationship.

7. The Father denied that he had ever abused the child. He said that he wanted to apply for “full custody” of him, with regular contact with the mother.

8. Dr R observed the child and the Father together and noted:

   [X] appeared very happy and pleased to see his father. They appeared to be close.[14]

   [14] Report lines 423-424

9. Dr R also observed the child in the presence of his mother, his maternal uncle and his maternal grandparents and noted:

   [X] appeared happy and relaxed with his mother, grandparents and uncle….The child was quite chirpy and happy with his maternal family.[15]

   [15] Ibid lines 457-458, 464

10. The parents were interviewed together. The Father said that there were no areas of agreement between them and the Mother said to him:

    “Why can’t you just be normal with him. Just do the right thing. What you’re doing has been detrimental to [X]. Just do the right thing.”[16]

    [16] Ibid lines 511-513

11. Dr R expressed these opinions about the nature of the relationship between the child and his mother:

    a)The maternal grandparents appear to have a significant and very strong relationship with the child and he sees them as an important part of his family;

    b)The child was developing well in the care of the Mother; they appeared to have a close loving relationship; the Mother cares for the child and wants to act in his best interest.

12. It was significant that the Mother and her family still had strong and unresolved grief issues about the death of the Mother’s brother in 2001:

    There appears to be a strong identification between the lost brother and [X]. The major area of concern was her fear about Mr Powers becoming too demanding with regard to wanting [X] and the potential need to share [X] and to an extent release [X] from the close immediate family.[17]

    [17] Report lines 558-562

13. Dr R said of the relationship between the Father and the child:

    Mr Powers and [X] appear to have a very close relationship. Their interaction was very warm. He appeared to have a good grasp of his needs and wanted to support him and his relationship with his mother. I formed the view that Mr Powers cared a great deal about [X] and I believe that he’s a capable caring parent. I formed the view that there was no suggestion that he was an unacceptable risk of harm to the child.[18]

    [18] Ibid 595-600

14. In his report, Dr R expressed the view that the child has a close relationship with both of his parents. It is a matter of concern that the child appeared to have been questioned “a great deal about his time with the father”.[19] Dr R went on to state:

    His rapport with the father indicated that he had a close relationship with him and that there was no sense that he was fearful or had any reservations about the father….He seemed a little more loyal towards his mother than his father but I found no evidence to suggest that there was a sense of apprehension about his father.[20]

    [19] Ibid 624

    [20] Ibid 625-630

15. Dr R considered possible outcomes in his report, being:

    a)The child continuing to reside with his mother and have supervised time with the Father;

    b)The child continuing to reside with his mother and have regular unsupervised time with his father; and

    c)The child residing with his father.

16. Dr R recommended that the child should continue to reside with the Mother and the maternal family but with substantial contact with the Father:

    I believe that after preschool or school Wednesdays until the next morning and Friday to Monday fortnightly is an appropriate amount of contact. Also half the school holidays. I presume the child will be commencing school in 2012.[21]

    [21] Report 745-749

17. Dr R made a number of other recommendations:

    a)Neither parent to denigrate the other parent in front of the child;

    b)Neither parent question the child about the time spent with the other parent;

    c)Neither parent use any physical punishment or use drugs or alcohol when caring for the child;

    d)Both parents and maternal grandparents should have individual counselling;

    e)Both parents attend post-separation counselling courses;

    f)Should the maternal family continue to be over anxious about the child having contact with his father and attempt to undermine or restrict the child from seeing his father, the mother and child may need to reside separately from the maternal grandparents; and

    g)“Should contact still be a problem and should there be further spurious allegations against the father and attempts to undermine the relationship between [X] and [Mr Powers] I believe that a change of residence to the father should be considered. I don’t believe that this is the first choice of either of the parents but should the process of continued allegations against the father continue there is a high risk that the child will lose his father and this has enormous implications for his long term mental health.[22]

    [22] Ibid 781-788

The law to be applied in applications for parenting orders

1. Part VII of the Family Law act 1975 deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

   a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

   b)Protecting children from physical or psychological harm;

   c)Ensuring that they receive adequate and proper parenting; and

   d)Ensuring that parents fulfil their duties and meet their responsibilities.

2. The principles underlying those objects are set in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents;

   b)Children’s right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development; and

   d)Parents should agree about the future parenting of their children.

3. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.

4. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility.

5. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

6. The term “substantial and significant time” is defined in s.65DAA(3) of the Act. Of course, it may be the case that the Court decides that, whilst it should make an order providing for a child’s parents to have equal shared parental responsibility, something other than substantial and significant time with a parent is a proper order to be made.

7. All of the above matters have been considered, insofar as they are relevant.

Conclusions

1. I am not of the view that either party should have sole parental responsibility for the child. Section 61DA requires the Court to apply the presumption that it is in [X]’ best interests for his parents to have equal shared parental responsibility for him, as the Independent Children’s Lawyer recommends.

2. This is not a case where the presumption does not apply under s.61DA(2) because of abuse of the child or family violence. The Court Expert, Dr R, has expressed a clear view that there was “no suggestion that he[23] was an unacceptable risk of harm to the child.”[24] Further, he found that there was no sense that the child “was fearful or had any reservations about the father”, nor was there any evidence “to suggest that there was a sense of apprehension about his father”.[25]

   [23] The father

   [24] Report page 17 lines 599-600

   [25] Ibid lines 626-627, 630

3. Further, Dr R could not find “any significant evidence to suggest that there had been any significant domestic violence involving (the mother)”.[26]

   [26] Report page 19 lines 679-680

4. Again, there is, in my view, no evidence that would satisfy the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him. The mother is said to have a close and loving relationship with the child. The father and child appeared to Dr R to have a very close relationship and their interaction was very warm.

5. This is a case where the parties should have equal shared parental responsibility for the child and I will order accordingly.

6. Turning to the consideration of whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent, I am not satisfied that it is. The communication between the parties has been quite strained and it is unlikely to improve quickly.

7. The maternal grandparents and the Mother’s brother displayed a degree of hostility towards the father which does not augur well for the Mother and Father to implement an equal time arrangement, noting that the Mother lives with them and is likely to be influenced by their views about the Father.

8. Consequently, I am not of the view that an equal time arrangement would be reasonably practicable because of:

   a)the parties’ capacity (or lack of it) to implement an arrangement for the child spending equal time with each parent; and

   b)the parties’ capacity (or lack of it) to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement.

9. Similar comments would apply to a substantial and significant time arrangement, although probably to a lesser degree.

10. The options to be considered are, on the one hand, the Father’s proposal that the child should live with him and spend supervised time with the Mother, or, the Mother’s proposal, largely supported by the Independent Children’s Lawyer, that the child should remain living with the Mother and spend time with the Father.

11. Dr R recommended that the child should continue to reside with his mother and her family, although he expressed concerns about their enmeshment and their lack of grief resolution “and the feeling that [X] is a direct replacement of the Uncle N in this family unit.”[27]

    [27] Report page 20 lines 738-743

12. Dr R recommended substantial contact with the Father, regular and unsupervised. In that case, he considered that the child would continue to develop a strong relationship with his father and would thrive from that relationship.

13. The best interests of the child must remain the paramount consideration. The evidence, especially that of Dr R, strongly suggests that this child will benefit from having a meaningful relationship with both of his parents. He appears to have a warm and loving relationship with each parent. There is not an unacceptable risk that he will sustain physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

14. Turning to the additional considerations, this child is too young for his views to be given much weight, although he is obviously comfortable and relaxed with both parents.

15. [X] has a warm and loving relationship with each parent and he appears to have a similarly warm relationship with his grandparents.

16. The Father has sought continually to spend time with his son, communicate with him, and participate in making decisions about him. The fact that the Mother hindered or prevented him from doing so is not to her credit.

17. Both parents appear to have fulfilled their obligations to maintain their child.

18. It would be a significant change in his circumstances if [X] were to leave his mother’s residence and live full-time with his father. Whilst Dr R ventured to suggest that the Father could possibly take over the care of the child if required, such a change in circumstances would in my view be upsetting and distressing to the child.

19. There should not be any practical difficulty or expense in this child spending time with and communicating with his father if he remains living with his mother, although the evidence shows that the Mother has hindered and prevented this communication and spending time in the belief that the child was being abused or neglected. In my view, she was incorrect.

20. This little boy is only seven years old, having been born on [omitted] 2006. He resides with his mother, maternal grandparents and maternal uncle in what appears to be a traditional Greek family. It is a matter of concern that his maternal family are still grieving for the wife’s brother, who died before this child was born.

21. [X] is his own person. He is not his maternal uncle and it is not in his best interests for him to be so identified.

22. I am not satisfied about any family violence involving the child or a member of his family. There are no family violence orders in place.

23. There is a clear need to make orders that would be least likely to lead to the institution of further proceedings in relation to the child.

24. This child has lived with his mother all his life. She has always been his primary caregiver. It is in his best interests that he should remain living with her.

25. However, he needs to spend a good deal of time with his father, certainly more than has been the case in recent years and, in my view, more than the mother suggests in her proposed orders. The Mother’s proposal would involve this child spending less time with his father than the original Consent Orders provided when they were made on 15^th August 2008. The Orders proposed by the Independent Children’s Lawyer would have the child spend more time with his father during the school term, as he would spend every Wednesday during the school term with him, and be returned to school on the Thursday morning.

26. The Mother proposes that the child would spend one Wednesday night a fortnight with his father but the other Wednesday would only be from after school until 7:00pm. This appears to me to be disruptive and it also has the disadvantage that the child would return to his mother at 7:00pm. This would involve a face-to-face meeting at changeover, either between the Father and the Mother or the Father and one or other of the maternal grandparents. Such an arrangement is just asking for trouble, in my opinion, as the communication between the Father and the Mother and also the maternal grandparents is not good. They have all shown hostility to the Father.

27. It would be preferable for the child to be returned to school on the Thursday morning  , which would result in a more peaceful transition.

28. It would also be advantageous if the child were to spend a long weekend with his father each fortnight, which would allow the Father to have more of an involvement with the child’s school. There are also various special occasions, such as birthdays and Father’s Day where this child should be with his father. Obviously, he should be with his mother on Mother’s Day and on her birthday.

29. The orders to be made will usually involve the child spending five nights each fortnight with his father during the school term, increasing to six if the Monday following the weekend with the Father is a public holiday.

Contravention

1. As for the contravention, it appears clear that the Mother has not made out a reasonable excuse for her admitted contraventions of the earlier orders. Consequently, the four contraventions referred to at paragraph [46] above have been established and the Mother has not proved that she had a reasonable excuse for those contraventions.

2. There is no evidence that a Court has previously made an order imposing a sanction or taking an action in respect of a contravention by the mother of the primary order. Section 70NEB sets out the powers of the Court in circumstances where Subdivision E of Division 13A of Part VII applies, what is referred to as a less serious contravention.

3. The Court has power under s.70NEB(1) to:

   a)make an order directing the person who contravened the order to attend a post-separation parenting program;

   b)make a further parenting order compensating the other person for the time not spent with the child;

   c)adjourn the proceedings to allow either or both parties to apply for a further parenting order;

   d)make an order requiring the person who committed the contraventions to enter into a bond;

   e)impose a fine not exceeding 10 penalty units;

   f)make an order requiring the person who committed the contraventions to compensate the other person for expenses incurred; or

   g)make an order for costs.

4. It appears to me that the Mother should attend a post-separation parenting program, as recommended by Dr R in his Report, in order for her to understand the dilemma imposed on the child as a result of her withholding him from spending time with his father. The Independent Children’s Lawyer should nominate an appropriate post-separation parenting course.

5. This also appears to be a proper matter for a costs order in respect of the contravention proceedings. It is relevant that s.117(2A) refers to the consideration in paragraph (d):

   whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;        

6. It is clear that the Father’s original application was his Application that the Mother should be dealt with for contravention of the previous orders. Whilst the Application was defective in respective of a number of allegations, four separate contraventions have been established. There is no evidence about the financial circumstances of the parties or whether either party is in receipt of legal aid.

7. The Mother will be allowed a period of one month to show cause why an order should not be made that she pay the Father’s costs of the contravention proceedings. She can do that by filing and serving an affidavit.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  27 November 2013