Shepp and Shepp (No. 2)

[2009] FamCA 727

FAMILY COURT OF AUSTRALIA

SHEPP & SHEPP (NO. 2) [2009] FamCA 727

FAMILY LAW – CHILDREN – injunction – whether an injunction should continue which restrains the parties from taking the child to or permitting the child to remain at licensed premises – whether there should be an exception permitting the mother to take the child to a  specified licensed venue

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Shepp

RESPONDENT: Mr Shepp

INDEPENDENT CHILDREN’S LAWYER: Ms Allan

FILE NUMBER: DNC 257 of 2007

DATE DELIVERED: 17 JULY 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: DARWIN

JUDGMENT OF: BURR J

HEARING DATE: 18 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Mother in person

COUNSEL FOR THE RESPONDENT: Mr Buckland

SOLICITOR FOR THE RESPONDENT: Anthony D Buckland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Allan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mary M Allan

Orders

1. That all previous current parenting Orders, including injunctions and in particular the parenting Orders contained in the Orders of 6 March 2008, be and the same are hereby discharged.

2. That the parties have equal shared parental responsibility for the child H (“the child”) born … February 1995.

3. That the child live with the mother and spend time with the father in accordance with the child’s wishes.

4. That the parties are to communicate with each other about parenting issues concerning the child by e-mail or in the case of emergency only by text message.

5. That in the event that either party wishes to travel overseas or interstate with the child during school holidays, he or she may do so for a period of not more than three [3] weeks provided he or she complies with paragraphs 7 and 8 of these orders.

6. The child have telephone communication with each of her parents:-

   (a)at any time the child wishes; and

   (b)that the parties are to encourage and facilitate telephone communication between each of them and the child;

   (c)that each of the parties shall communicate with the child by telephoning her on her mobile telephone.

7. That in relation to travel interstate and/or overseas with the child, the travelling parent is to provide the non-travelling parent with:-

   (a)twenty-one [21] days notice of his/her intention to travel with the child (if travelling interstate);

   (b)forty-two [42] days notice of his/her intention to travel with the child (if travelling overseas);

   (c)a copy of the child’s return ticket;

   (d)a copy of the child’s travel itinerary;

   (e)a telephone number and address for each accommodation where the child and the travelling parent are staying.

8. During travel interstate or overseas the child is to maintain regular communication with the non-travelling parent by any means whatsoever including communication by:-

   (a)telephone calls;

   (b)SMS text messages;

   (c)e-mail.

9. That if the child has concerns about overseas or interstate travel she is to discuss these concerns with her school counsellor and neither party is to question or probe the child in relation to her concerns and/or her discussions with the school counsellor.

10. That in relation to overseas travel, the child is only to be taken to a country covered by the Hague Convention unless travel to such other country is expressly agreed between the parents in writing prior to the child’s departure from Australia.

11. That a copy of these Orders will provide authorisation to the child’s school and/or medical practitioner(s) to provide to each of the parties:-

    (a)any material regarding the child’s schooling, including but not limited to, copies of school reports, school notices, parent / teacher interview notices and the like; and

    (b)any material regarding the child’s medical state including, but not limited to, medical reports, treatment details, referrals and the like.

12. That the parties are restrained and an injunction is hereby granted restraining either of them from taking the child or permitting the child to remain in licensed premises except for:-

    (a)free standing restaurants at any time; and

    (b)during any trip of four [4] days or more during which either parent may take the child to stay in a hotel if no other suitable accommodation is available or if such hotel accommodation is three star or more but shall not permit the child to enter the front bar or lounge bar of the hotel;

    (c)the SH Tavern.

13. That the parties are restrained and an injunction is hereby granted restraining either of them from transporting the child in a motor vehicle she or he is driving within eight [8] hours of drinking alcohol.

14. The parties are restrained and an injunction is hereby granted restraining either of them from denigrating the other within the sight, hearing or presence of the child UPON NOTING that in the event that a third party is denigrating the other parent in the presence of the child, the accompanying parent shall forthwith remove the child from the area.

15. That each party will notify the other of their current residential address and a contact telephone number and advise the other party of any change to these details within forty-eight [48] hours of such change.

16. That the appointment of the Independent Children’s Lawyer be discharged.

17. That all applications before the Court with respect to parenting Orders be dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN
SITTING AT ADELAIDE

FILE NUMBER: DNC 257 of 2007

MS SHEPP

Applicant

And

MR SHEPP

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The applications

1. The parties to these proceedings have been engaged in long running and bitter disputation and proceedings for some three years now.  Among many other Orders made by the Court during the progress of the proceedings, final Orders on children’s issues were made in late 2007 and then again after further proceedings, on 6 March 2008.  Only as recently as 17 June 2009 did Strickland J deliver reasons and make final Orders on issues of property settlement between the parties. 

2. The proceedings before me now for determination again relate to the child of the parties’ marriage, a daughter born in February 1995.  Thus the child is 14 years of age.

3. In her Application filed on 5 March 2009, whilst couched in different terms, the mother sought Orders discharging the Orders made by me on 6 March 2008 and that henceforth the child live with her and only see the father at times that the child wished to.  Initially the father opposed those Orders in his Response filed on 8 April 2009.  He also sought findings that the mother had contravened previous Orders of the Court, although his application in that respect was in the wrong form.

4. On 19 March 2009 I ordered the appointment of an Independent Children’s Lawyer and the preparation of a Family Report.  Consequent upon the Family Report released on 1 May 2009 prepared by Mr V, I made a further Order that Mr V respond to a number of queries that the father had raised in relation to the Family Report.  Mr V provided those answers in his addendum report dated 11 June 2009.

5. As a consequence of Mr V’s reports and assistance provided by the Independent Children’s Lawyer, the parties were able to resolve essentially all issues in dispute between them.  The father acknowledged that given the child’s strongly expressed wishes to Mr V it would be pointless him opposing the child’s desire to live with her mother.  In the end result the only dispute between the parties requiring my determination is in relation effectively to paragraph 18 of my Orders made on 6 March 2008.  That Order reads:-

   “The parties are restrained and an injunction is hereby granted restraining either of them from taking [the child] or permitting [the child] to remain in licensed premises except for:-

   (a)free standing restaurants at any time; and

   (b)during any trip of four [4] days or more during which either parent may take [the child] to stay in a hotel if no other suitable accommodation is available or if such hotel accommodation is three star or more but shall not permit [the child] to enter the front bar or lounge bar of the hotel.”

6. During her evidence the mother made further concessions and indicated that she would be content to continue to be bound by the terms of the aforementioned paragraph 18 of the Orders of 6 March 2008 and instead sought only an exception permitting her to take the child to the SH Tavern and allowing the child herself to attend at the SH Tavern in the company of friends and their families.  The father was opposed to the child attending any licensed premises including the SH Tavern, save and except in terms of paragraph 18.  Thus he was opposed to there being any alteration or amendment to the said paragraph 18.

The evidence

1. The mother, the father and Mr V gave evidence and each was cross-examined.

2. The concerns raised by the mother and the issues raised by her as suggesting that I ought to make the Orders sought by her can be summarised in short form as follows:-

   8.1that the child feels that she “doesn’t have a life” in terms of the things that she would like to do;

   8.2that the child wished to attend places like the SH Tavern as she had been able to do in the past when the family was together and prior to the injunction being granted;

   8.3that the child wanted to attend the various social functions, quiz nights and bingo nights on Tuesday of each week conducted at the SH Tavern;

   8.4that the child did not consume alcohol and that she, as a mother, did not approve the child consuming alcohol;

   8.5that when the child stays at friend’s houses they often attend the SH Tavern in the absence of the mother;

   8.6that before the parties separated they regularly frequented the SH Tavern with the child;

   8.7that visits to the Tavern do not interfere with the child’s homework as they would be home by 9.45 pm;

   8.8that the dining room of the SH Tavern was separated by walls and doors from the front bar;

   8.9that the child would be unlikely to be exposed to unseemly or unpleasant conduct by Tavern patrons;

   8.10that they were essentially family occasions enabling mother and daughter to do things that the child and her friends and their families were able to do.

3. At various points in her evidence the mother said:-

   9.1that she denied drinking alcohol to excess, although acknowledging that at times during the separation processes she did drink too much;

   9.2that presently she goes to the SH Tavern on two occasions per week when the child is staying over with friends;

   9.3that the SH Tavern is only 10 minutes by motor vehicle from her premises;

   9.4that she does not drive intoxicated;

   9.5that she has undergone tests which would indicate whether or not she drank to excess.  Those tests were liver function tests conducted by her general practitioner Dr C and those tests indicated no problems;

   9.6that she would anticipate that she and the child would attend at the SH Tavern at least every Tuesday for bingo nights;

   9.7that the child enjoyed her bingo;

   9.8that the mother drank cider and usually drank between 2 to 4 drinks;

   9.9that the last time that she had consumed alcohol to excess was some 3 weeks ago on an occasion when her friend had returned from working on mine sites and it was an occasion when they went out together as they do regularly.  The child was staying at a friend’s house on that occasion.

4. For his part the father expressed his concerns in the following areas:-

   10.1that prior to separation the child had never indicated that she wished to attend bingo and that he did not know that she even liked bingo;

   10.2that when she resided with him, the child had a good deal of homework to attend to each night, although he acknowledged that he did not know her current workload in that regard;

   10.3that he was convinced that the mother attended at the SH Tavern on more occasions than the two nights per week indicated by her.  He said that he shopped near the Tavern and in fact attended just about every day to collect his mail.  On many occasions he had seen the mother’s car there at times in excess of four occasions per week;

   10.4that he did not know the child’s present friends and their families who attended at the Tavern;

   10.5that he had seen the child in the beer garden on two occasions, namely on 3 May 2009 at 3.45 pm and 15 May 2009 at 4.16 pm.  He made notes at the time;

   10.6that the SH Tavern was not a good environment for the child in that it was becoming increasingly crowded and in the past she had been caught up in a bar room brawl;

   10.7that he considered the mother to be a liar and that he had no faith in her ability to keep the child safe;

   10.8that sadly, he had lost all faith in and respect for the child;

   10.9that the mother had often breached Orders in the past and that he had no confidence that the Court would enforce those Orders and hence his reason for not pursuing contravention proceedings in this Court.

5. The father further acknowledged in evidence that:-

   11.1prior to separation the family with the child fairly regularly attended at the SH Tavern on Thursday quiz nights and some Sunday nights (where they had a very nice roast);

   11.2The child had not made any mention to him of any concerns that she had at the SH Tavern;

   11.3he acknowledged that nothing untoward had happened at the SH Tavern when they attended as a family prior to separation;

   11.4he felt more comfortable though about the situation then than he does now because he was there to watch over things at that time;

   11.5he acknowledged that when the parties went to the Tavern as a family when the child was some 10 or 11 years old they did not return home until about 9.00 pm;

   11.6he acknowledged that other families with children were there, especially at Thursday quiz nights;

   11.7he had not been inside the Tavern for several years now and could not comment upon what it was like from his own experience;

   11.8he acknowledged that on the occasions he had attended he had been outside and had not been able to see what was happening inside;

   11.9he wanted the Orders simply as a form of backup or insurance just in case things went wrong;

   11.10he did not believe that the child ought to be making these decisions for herself until she was 16 years of age;

   11.11his relationship with the child would never be the same, but he acknowledged that he would like some improvement;

   11.12he acknowledged that the Order that he was seeking may place a further obstacle in the path of restoring his relationship with the child.

6. At my request Family Consultant Mr V interviewed the child again by telephone in order to discuss with her the specific issue that remained for my determination.  After doing so he reported in his evidence that:-

   12.1the child said that she would like to go to the SH Tavern;

   12.2her social life was important to her;

   12.3she feels restricted by the current Court Orders;

   12.4her friends go there with their families and she feels that she should be allowed to as well;

   12.5she does, and is able to, attend with her friends but not with her mother;

   12.6she does not drink alcohol;

   12.7she likes bingo;

   12.8she would like to go out to dinner with her mother at the SH Tavern;

   12.9the child gave no indication that she had concerns about her mother’s drinking or alleged drink driving;

   12.10if her mother did drink too much she did not drive.

7. Importantly Mr V, having now had an extensive interview with the child on 24 April 2009 and a follow up telephone interview with her on 18 June 2009, offered a number of valuable insights into the child as it bears upon the issue to be determined by me.

8. He said that:-

   14.1the child was a confident person who evidenced clear thinking;

   14.2probably as a consequence of the lengthy bitter disputation between her parents, she was far more mature than her 14 years.  He described the child as having “fast tracked maturity”;

   14.3the child demonstrated a very independent streak and a capacity for very strong feelings;

   14.4he was satisfied that the child would not be intimidated by her mother or permit poor behaviour by the mother if it troubled her.

The law

1. The findings that I make in this matter must reflect the child’s best interests as the paramount consideration (Section 60CA of the Family Law Act 1975). In making that determination I am guided to the provisions of Section 60CC which is divided into “primary” and “additional” considerations. Only the second of the “primary” considerations bears any relevance to this matter, namely:-

   (b)     the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

2. Only a few of the “additional” considerations are relevant here, namely:-

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

   (f)the capacity of:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

3. In my view, matters of relevance fall comfortably for discussion under each of the sub-sections enumerated above and it is appropriate to deal with the relevant factual issues as they bear upon those sub-sections, in a single general commentary.

4. For the father, the principal issue here is to protect the child from possible poor behaviour at the SH Tavern and more significantly, the poor behaviour and excessive drinking of the mother.  I am satisfied that the father has good grounds to be concerned as to the mother’s consumption of alcohol.  She acknowledged in her evidence that at around the time of the separation and subsequent to it during the course of the bitterly contracted proceedings, she did drink to excess.  Further, she acknowledged that only as recently as three weeks ago she drank too much.

5. I am satisfied though, from the evidence of Mr V in particular, that the child exhibits sufficient maturity to deal with any excesses that may be displayed by her mother in that regard or in any other regard.  Her strong and independent will impressed Mr V.  I am satisfied that it will stand her in good stead should the mother depart from proper parental role modelling and supervision in the future.

6. I am also satisfied that attendance at the SH Tavern for bingo, quiz nights and other social activities is important to the child.  She has a friendship group that enjoys similar activities at the same location.  Given her maturity and expressed strong views, I am satisfied that it is appropriate that she be permitted to attend at the SH Tavern either in the company of her friends and their families or her mother.  It is somewhat absurd that the child has been attending at the Tavern with friends but has not been able to do so with her mother.

1. There is no question that these proceedings have taken an enormous toll upon each of the mother and the father.  I remarked as much during the course of their evidence.  Hopefully my determination of this matter brings to an end their formal disputation.  This in turn hopefully will diminish the mother’s need to use alcohol as her emotional crutch.

2. I am satisfied that the mother has not in the past exhibited an exemplary degree of attention to her parental responsibilities but, in my view, the child’s maturity, strength and independence and desire for a social life with her mother presently enjoyed by her with other friends and their families, outweighs other considerations in the matter.

3. The father’s position is not supported by the Independent Children’s Lawyer who indicated:-

   23.1that the child should be permitted to attend at the SH Tavern;

   23.2that she took the view that there would be more harm than good created in this Court making the Orders that the father seeks.  In that regard, she quite rightly directed the Court’s attention to the fact that paragraph 18 of the Orders of 6 March 2008 had already been a cause for contention between the parties;

   23.3that the father’s relationship with the child is now almost non-existent and that any prospect of it improving would be more likely if the restrictions that would be viewed by the child as having been imposed upon her by her father, were lifted.  She would otherwise blame and resent her father;

   23.4that in her view Orders as sought by the father would impede normalisation of the relationship between father and daughter;

   23.5that in reality the father had acknowledged that he did not really see the Orders sought by him as keeping the child safe, but rather that it provided him with a “back stop” or “insurance” in the event that something untoward happened;

   23.6that, as expressed by me earlier, she hoped that given property settlement issues were resolved between the parties, this may now be the end of litigation between them.  She took the view that imposing the Orders sought by the father would likely only fuel further bitterness and potentially generate further litigation.

4. In this respect, Section 60CC (3)(l) is relevant:-

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

5. In my view, the history of litigation between the parties provides very strong evidence of the likelihood, indeed probability, that imposing the Orders sought by the father would only lead to further litigation between them.

6. For the reasons expressed above, I decline to make the Orders sought by the father.

Orders

1. The exact terms of the Orders sought by each of the parties in their filed documents were imprecise but I understand from the evidence given and the submissions made by or on behalf of each that their intention and agreement is that the Orders requiring the child to live in part with the father are to be discharged and any Orders related thereto, but otherwise the general tenor of the Orders of 6 March 2008 is to remain in place.

2. The remaining issue is the one requiring my determination as to the child’s attendance or non-attendance at the SH Tavern.  I have framed my Orders accordingly.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: