Shivas and Darby (No 2)

[2014] FamCA 1176

FAMILY COURT OF AUSTRALIA

SHIVAS & DARBY (NO. 2) [2014] FamCA 1176

FAMILY LAW – CHILDREN – where a final hearing was conducted and final parenting orders made – where those orders provided for a change of residence in which the child was to live with the father, as a result of the mother’s inability to protect the child from her partner – where those orders were immediately stayed in circumstances where the mother’s partner died – where it is concluded that the impact on the child of being removed from the mother and sisters, given the current situation, would be significantly adverse to him – child to live with the mother – child to spend substantial and significant time with the father – mother to have sole parental responsibility, save for the child’s education, where both parties will share parental responsibility

In the Marriage of Rice & Asplund (1979) FLC 90-725

Marsden & Winch (2009) 42 Fam LR 1

APPLICANT: Mr Shivas

RESPONDENT: Ms Darby

INDEPENDENT CHILDREN’S LAWYER: Coast Law

FILE NUMBER: (P)NCC 1283 of 2013

DATE DELIVERED: 23 December 2014

PLACE DELIVERED Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 28 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: King Legal (Ms King)

SOLICITOR FOR THE RESPONDENT: Katie Smith Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. That all prior parenting orders in relation to J born … 2009 (‘the child’) are discharged.

2. Parental responsibility:

   2.1The mother shall have parental responsibility for the long term issues of welfare and development for the child (other than education) and in that regard she shall take the following steps on each occasion when a decision on such an issues arises:

   2.1.1advise the father in writing of the issue and her proposal and nominating a period of time for his response;

   2.1.2consider any response received from the father within the nominated time; and

   2.1.3advise the father of the decisions taken and of appointments, meetings, treatment or expenses which will likely result.

   2.2The parties shall have equal shared parental responsibility for the education of the child.

   2.3Each of the parties is restrained from changing the child’s enrolment at U School without the prior written consent of the other party or by further order of the Court NOTING the child has been enrolled to commence at that school.

3. That the child shall live with the mother.

4. The child shall spend time with the father as follows:

   4.1      Until the commencement of the school year in 2015:

   4.1.1   from 4.00 pm on 25 December 2014 until 4.00 pm on 2 January 2015;

   4.1.2   from 16 January 2015 until 22 January 2015;

   4.2      From the commencement of the school year in 2015:

   4.2.1during school terms each alternate weekend from after school Thursday to before school Monday (extending to Tuesday if Monday is a public holiday);

   4.2.2each other Thursday from after school until before school Friday.

   4.3From 4.00 pm on 23 December until 4.00 pm Christmas Day during school holiday periods commencing after Term 4 in even numbered years (commencing 2016).

   4.4      During all school holiday periods:

   4.4.1for the first half of each holiday period commencing in odd numbered years (commencing in December 2015) and the second half in years where the holiday period commences in even numbered years (commencing in January 2017) NOTING time at Christmas is to be suspended in odd numbered years from 4.00 pm on 23 December until 4.00 pm on Christmas Day.

5. The child shall communicate with the father during term times on Monday, by the father telephoning the child between 6.00 pm and 6.30 pm.

6. During holiday periods each party shall permit and assist the child to contact the other party at any reasonable time.

7. On the weekend of Father’s Day, if the child is not due to spend time with the father, then the child spend time with the father from 3.00 pm on the Saturday before Father’s Day until return to school on the following Monday.

8. In the event the child is spending time with the father on the weekend in which Mother’s Day falls, time is suspended from 3.00 pm on the Saturday before Mother’s Day for the balance of that period.

9. That changeovers for the child which cannot take place at school shall take place by the mother or her nominee delivering the child to the father or his nominee at the father’s home at the commencement of a period of time and the father or his nominee to delivering the child to the mother or her nominee at the mother’s home at the conclusion of the period of time.

10. That each party shall keep the other advised in writing of their current residential address and contact telephone number.

11. That each party shall do all acts and things necessary to ensure that each of them receives from the school all documents relating to the progress and welfare of the child, including but not limited to school reports; newsletters; invitations to events which parents ordinarily attend; and applications to buy school photographs.

12. That each party is restrained from making rude and/or critical remarks about the other party and members of the extended family of that party in the presence and hearing of the child and on social media AND FURTHER shall remove the child from the presence of any person making such remarks.

13. Each party shall forthwith advise the other party (personally if at all possible) in the event that the child:

    (a)       requires urgent medical attention;

    (b)       suffers an accident which requires urgent medical attention;

    (c)       becomes seriously ill.

14. The parties shall communicate in relation to matters involving the child in a business-like manner by whichever means (including but not limited to letter, telephone calls, email, SMS text) which the party initiating communication considers least likely to lead to conflict between them.

15. Each party is to cooperate in any way asked of that party by the psychologist at M Psychology practice Suburb U, who the child has been referred to.

16. The Independent Children’s Lawyer is to provide a copy of these Orders to:

    (a)Dr X at M Psychology, Suburb U;  and

    (b)The Principal of U School

    AND is thereafter the Independent Children’s Lawyer is discharged.

17. 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.

THE COURT NOTES:

(A)The Court was advised by the solicitor for the mother that the mother has commenced a therapeutic relationship with a psychologist, Dr Y at Suburb E, her first appointment having been Wednesday, 26 November 2014 and intends to continue as professionally advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shivas & Darby (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1283 of 2013

Mr Shivas

Applicant

And

Ms Darby

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. This is a dispute over parenting arrangements in respect of one child, five years nine months.

2. Judgment was delivered on 2 October 2014 making orders for the child to move to live with the father, with those orders to be suspended pending further hearing.  The reason for that course was that after the conclusion of the trial, but just prior to delivery of judgment, the mother’s partner died in a motor cycle accident. 

3. The question of risk to the child arising from the relationship between the mother and her late partner was central to the outcome of the proceedings.  Accordingly directions were made for a further hearing, given the change of circumstance conceded by all parties.  The order for suspension for change of residence has continued pending the delivery of further orders.

4. The matter was listed before me for a one day hearing on 28 November 2014.  Accordingly, the child has remained living with the mother and spending time with the father, as he has done since the separation of his parents.

The evidence

1. The parties relied upon the following documents:

   a)Minute of final orders proposed by the mother;

   b)Affidavit of mother filed 26 November 2014;

   c)Affidavit of father filed 26 November 2014;

   d)Family Report dated 14 May 2014.

Family Consultant

1. The family consultant had recommended in her report prepared 14 May 2014 that the child continue to live with the mother if there was an injunction in place to prevent the mother from bringing the child into contact with her partner.  The family consultant strongly recommended that in the event the mother did not adhere to the injunction (or if the injunction was not made), then the child should live with the father.[1]

   [1]Family Report dated 14/05/2014, pars 131-138

2. During the course of the final hearing the mother had given conflicting evidence about her relationship.  I concluded that she and her late partner were very much together in a relationship and planning a future together.  When the family consultant was made aware of that situation, she was definite that there should be a change of residence.

3. The family consultant reiterated her view that the mother took good care of the subject child and her two younger children and that her mothering skills were not the problem; it was her inability to protect the subject child from what should have been an obvious source of risk that reflected on her parenting capacity.[2]

   [2]Shivas & Darby [2014] FamCA delivered 02/10/2014 par 145

4. In this second hearing, the family consultant was told of ongoing conflict and poor communication between the parties since the conclusion of the last hearing in September 2014.  On behalf of the father, the family consultant was asked to comment about ongoing concern about the mother’s mental health and drug and alcohol use.  The family consultant agreed that there was a basis for concern, particularly in the context of the grief and loss that the mother was experiencing.  She also said this:

   I am concerned that the mother did not accept that the partner was the issue and that she had to give the child priority.

5. The family consultant expressed the view that the mother was experiencing a stressful period of time where “people can revert to substances” or that the shock of the judgment ordering a change of residence, plus a therapeutic intervention, could change the mother’s thinking so as to enable her to give priority to her children.

6. The family consultant also made this significant statement in relation to the child and his experience of events since the death of his mother’s partner:

   It would be a huge adjustment to be separated from mum and sisters when he is already in grief.

The father

1. The father is a protective father.  He had been worried about the effect on the child of being taken to the funeral of the mother’s late partner.  It is understandable.  He raised his opposition with the mother.  I note that the mother did obtain guidance from the priest officiating at the funeral before taking him over the objection of the father. 

2. The father has no doubt also been affected by events, including orders being made for the child to live with him, immediately suspended and a further hearing.  He continues to be legitimately concerned about the mother’s judgment and the possibility of a further relationship detrimental to the child.  Whilst he is not indifferent to the mother’s two younger children, naturally his focus is on protecting the subject child.

3. I accept that although the mother’s late partner was a big factor for the father’s fears about the child, the bigger factor for him was the mother’s decision making about how to protect her children.  The father referred to previous relationships, “She told me of her previous boyfriends throwing her around and being argumentative”.  The father readily conceded that he and the mother had themselves been “argumentative”; it is a legitimate concern.

The mother

1. The mother has moved to Suburb U and agreed to the child attending Suburb U School.  That area of dispute between the parents is therefore resolved and an order has been made that the child not be removed from that school without the written consent of both parents, or by further order of the Court.

2. The mother’s evidence reflected her deep sadness at the loss of her partner.  She gave evidence of wanting to be on her own to raise her children and not wanting any further relationships.  I do not consider that the mother was attempting to deliberately mislead the Court on this occasion.  I interpret that evidence in the context of the very recent loss of her partner and desperation to keep the child within the family.  The mother appeared to believe her own statement.

3. The mother referred to herself as “blindsided by my love for [my late partner] and our two children” and that she now understood the importance of the child being in a safe and happy environment.  The mother expressed her willingness to proceed with counselling initially for her grief, and then moving on to therapeutic investigation of her relationships.  It is crucial that the mother takes that second step and begins a therapeutic relationship with somebody who can work with her, through the impact on her life of violent relationships to date and the impact on herself and the children if there were to be another such relationship in the future. 

4. I am satisfied that the mother does not at this time, fully understand or accept the impact that her relationship with her late partner had on all her children, but in particular the subject child.  She said this:  “[the child] had a great relationship with [my later partner] that’s why I don’t understand”.  She does not accept that there is a problem which others see that she does not.

5. In considering the best interests of the child, I have concluded that the impact of being removed from the mother and sisters would be significantly adverse to him.  Whatever the character of the relationship between himself and the mother’s late partner, he has been emotionally affected by his death, primarily because of the impact on the mother.  It does seem to me that his best interests are promoted by substantial and significant time with the father, extended alternate weekends and one day overnight, but maintaining his relationship with the mother and sisters as a family unit.

6. On behalf of the father the possibility was raised that a notation could be made to the orders that if the mother entered a relationship with objective signs of domestic violence, the principles in Rice & Asplund could be overcome.[3]

   [3]In the Marriage of Rice & Asplund (1979) FLC 90-725; Marsden & Winch (2009) 42 Fam LR1

7. Whilst I do not consider that an appropriate course, there is no doubt in the circumstances of this case that when the mother does enter a new relationship, as she is like to do given her age and history, the father will be appropriately anxious about the suitability of that new partner in relation to the child.  The mother should give serious consideration to introducing any new partner to the father, but certainly advising the father of the existence of a new relationship.  The child should not be the conduit for that information.

8. I also take into account that there will be a new child in the father’s household early in 2015 and that the child is not well placed emotionally for both losing daily contact with the mother and sisters and accepting a new child in his father’s life.

9. For that reason fresh orders have been made confirming residence for the child with the mother, defined time for the child with the father and specific issues around counselling for the child and his attendance at school. 

10. A notation has been made to the orders of the mother’s embarking on personal counselling.  In the event that she simply fails to follow through with that counselling, given the significance of the need for her to understand the impact of domestic violence on herself and her children; that failure alone would amount to a change of circumstances in my view.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 December 2014.

Associate: 

Date: 24 December 2014