Silverton and Krowiecz
[2016] FamCA 223
•8 April 2016
FAMILY COURT OF AUSTRALIA
| SILVERTON & KROWIECZ | [2016] FamCA 223 |
| FAMILY LAW – CHILDREN – Where primary parenting orders made by consent – Where parties remain in disagreement as to several discrete issues regarding father’s knowledge of the children’s school and the parties’ alcohol consumption during the children’s time with them – Orders as to alcohol consumption made by consent – Consideration of the history of domestic violence between the parties – Consideration of best interests principles – Orders made for the father’s attendance at school subject to appropriate restraints and notice to the mother and facilitating the father receiving the usual information as to the children’s schooling. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 MRR v GRR (2010) 240 CLR 461 |
| APPLICANT: | Mr Silverton |
| RESPONDENT: | Ms Krowiecz |
| INDEPENDENT CHILDREN’S LAWYER: | Dignan & Hanrahan Solicitors & Attorneys |
| FILE NUMBER: | PAC | 5647 | of | 2013 |
| DATE DELIVERED: | 8 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21 March 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW Campbelltown Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dignan & Hanrahan Solicitors & Attorneys |
Orders
IT IS ORDERED BY CONSENT:
That the father be and is hereby restrained from consuming alcohol during the period commencing 12 hours prior to and during the period when the children are in his care.
That the previous order is suspended on 14 May 2016 and 3 September 2016 during the father’s engagement party and wedding and wedding reception and during these periods the father shall not consume alcohol excessively.
That the father shall use his best endeavours to ensure that his partner Ms D does not consume alcohol whilst the children are in his care.
That the children B (“B”) born … 2008 and C (“C”) shall be in the care of the father on the weekend of 3 September 2016 if not his usual weekend with the children and he shall forego his next due weekend with the children pursuant to the orders herein.
That the father be and is hereby restrained from approaching the mother whilst present at the school of the children.
That the father be and is hereby restrained from seeking to locate and attend at the residence of the mother.
IT IS FURTHER ORDERED:
That the father and mother do all things necessary and sign all necessary documents within 7 days from the date of these orders to authorise and direct that any school or preschool attended by the children B and C to discuss with each of the mother and father the children’s school attendance and progress, and to furnish school reports, photos and copies of relevant correspondence, newsletters or other material produced by the school and distributed to parents or relating to the children or either of them specifically to each of the mother and father.
That the father shall be entitled to attend at significant school or preschool events to which parents are usually invited to attend including but not limited to parent teacher interviews, school concerts, assemblies and award ceremonies provided that the father gives to the mother not less than 48 hours notice of his intention to attend such school events such time period to be calculated from the commencement time of the proposed school event and provided all ways that such notice to the mother shall be in writing including communication by email or SMS message.
That the father is restrained from attending at the said children’s school or preschool other than for the purpose of occasions provided for in the preceding order or for the purpose of arranged appointments or interviews with school staff.
That the father is restrained from approaching the mother whilst he is present at the children’s school or preschool.
That the father is restrained from assaulting, molesting, harassing, intimidating, stalking and abusing the mother.
That otherwise all applications before the Court be dismissed.
That the proceedings be removed from the active pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Silverton & Krowiecz 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 PARRAMATTA |
FILE NUMBER: PAC 5647 of 2013
| Mr Silverton |
Applicant
And
| Ms Krowiecz |
Respondent
REASONS FOR JUDGMENT
These proceedings are parenting proceedings in relation to three children E now aged nearly 13, B, aged seven, and C, aged nearly five.
The applicant father, the respondent mother and the three children attended for the purposes of the preparation of a Child Responsive Program Memorandum on 19 November 2015.
Subsequently proceedings were listed for the first day less adversarial hearing on 11 December 2015 on which date the Court made orders for the appointment of an Independent Children’s Lawyer (“ICL”) to represent the interests of the children. Proceedings were adjourned to Tuesday 15 March 2016 for further judicial case management.
On 15 March 2015 the mother and father agreed to comprehensive final parenting orders in relation to the children. Those orders were made and are as follows:
1. That all previous parenting orders in relation to the children [E] (“[E]”) born … 2003, [B] (“[B]”) born … 2008 and [C] (“[C]”) born … 2011 be discharged.
2. That the mother have sole parental responsibility of the children.
3. That the children shall live with the mother.
4. That the child, [E], spend time with the father in accordance with her wishes.
5. That the children, [B] and [C], spend time with the father as follows:
a) each alternate weekend from 5.00pm Friday until 7.30pm Sunday;
b) for one week of each school holiday period at the conclusion of Term 1 and Term 2 each year as agreed but failing agreement commencing from 5.00pm on the Friday that the father would be spending time with the children pursuant to Order 5(a) above until 7.30pm the following Friday;
c) for two weeks of the Christmas School Holiday period at the conclusion of Term 4 each year as agreed but failing agreement from 5.00pm on 11 January until 7.30pm on 26 January;
d) from 3.30pm on the Saturday prior to Father’s Day until 7.30pm on Father’s Day each year, in the event that the father is not already spending time with the children;
e) in 2016 and each alternate year thereafter from 3.30pm Christmas Eve until 3.30pm Christmas Day;
f) in 2017 and each alternate year thereafter from 3.30pm Christmas Day until 3.30pm Boxing Day;
g) at such other and further times as may be agreed between the parties from time to in writing.
6. That irrespective of any Order to the contrary herein, the children shall spend time with the mother from 3.30pm on the Saturday prior to Mother’s Day.
7. That for the purposes of these Orders, changeover shall occur at the McDonald’s Restaurant, [Suburb F] or as otherwise agreed between the parties in writing.
8. That the father’s time with the children is also suspended as follows:
a) in 2016 and each alternate year thereafter from 3.30pm Christmas Day until 3.30pm Boxing Day;
b) in 2017 and each alternate year thereafter from 3.30pm Christmas Eve until 3.30pm Christmas Day.
9. That for the purposes of these Orders where the father is delivering the children to changeover at 7.30pm, the father shall ensure that the children are fed dinner, bathed and ready for bed.
10. That the children shall communicate with the parent they are not otherwise in their care by telephone each Wednesday with such call to be placed by the parent who does not have the children telephone the other parent on a number nominated by them between 5.00pm and 5.30pm with such phone call not to exceed 20 minutes, and each parent shall ensure that the telephone is switched on, charged and available to receive calls and the children shall be given privacy during the telephone calls with the other parent.
11. That each party shall encourage and facilitate telephone communication between the children and the other parent whilst the children are in the care of the other parent, and as requested by the children.
12. That within 7 days the mother shall sign all documents and do all such things to authorise the father’s access to the documents of and contact with all professional that are involved with the treatment of the child [B’s] health, in particular in relation to his diagnosis of autism.
13. That the parties are to notify the other party of any serious injury or illness or medical emergency in relation to the children, or any of them, as soon as is practicable.
14. That the parties are hereby restrained from denigrating each other or any member of the other party’s family in the presence or hearing of the children, or any of them, or permitting anyone else from doing so.
15. That each party shall ensure they keep each other advised at all times of their emergency contact number and email address and notify the other of any changes in relation to those details as soon as possible and no later than 48 hours after such change occurs.
16. That the parties shall communicate with one another in relation to the children by SMS text message or with the assistance of the maternal grandmother, except in cases of emergency where the parties are to communicate with one another by telephone or with the assistance of the maternal grandmother.
17. In the event the children, or any of them, are sick and unable to spend time with the father in accordance with these Orders, the father shall spend make-up time with the children at a time agreed between the parties and as soon as practicable thereafter.
18. That the mother shall ensure that the father is kept advised of any medical practitioner attended upon the children and shall notify the father of the contact details of any new medical practitioners attended upon by the children within 48 hours of the children attending upon that medical practitioner.
19. That both parties be permitted to liaise directly with the children’s medical practitioners to enable both parties to be provided with sufficient details to enable them to be consulted with respect to and fully advised regarding any treatment recommended or provided to the children or any of them.
20. That the parties are restrained from changing the children’s surnames and each party shall ensure that each of the children are known by the surname “[Silverton]”.
21. That the father is retrained from attending at the mother’s residence without prior written consent of the mother.
On 15 March 2016 it was further ordered that the outstanding issues in relation to parenting be adjourned to Monday 21 March 2016 at 10:00am and that each of the parties file and serve a signed proof of evidence by their client as to their evidence in chief in relation to the discreet issues for determination by no later than the close of business on Friday 18 March 2016.
The Court noted that the parties were at issue in relation to two discreet matters:
a)Whether the Father is able to attend at the children’s school on occasions where the attendance of either or both parties is to be reasonably expected and whether he in relation to the children’s schooling should be able to receive reports from time to time; and
b)Whether the parties should be restrained from consuming alcohol whilst the children are in their respective care.
On 21 March 2016 a short hearing took place in relation to the outstanding discrete issues for determination.
Context
The father is 35 years of age and the mother 32 years of age.
The parties’ relationship commenced in about 2002 and they married in 2008. They separated in February 2011. The subject children referred to above are the children of their relationship.
The parties separated early in their relationship and final parenting orders were made by consent in relation to the then only child E on 16 April 2004.
On 26 May 2014 at the Suburb G Local Court a final apprehended domestic violence order was made for the primary protection of the mother. The order was for a period of two years ending on 26 May 2016. The order was made in standard terms and in summary provided:
a)That the father must not assault, molest, harass, threaten or otherwise interfere with the mother or a person with whom the mother has a domestic relationship;
b)That the father must not engage in any other conduct that intimidates the mother or a person with whom the mother has a domestic relationship; and
c)That the father must not stalk the mother or a person with whom the mother has a domestic relationship.
The Child Responsive Program Memorandum
The Child Responsive Program Memorandum is dated 25 November 2015 (Exh A) and sets out the parties’ contentions in relation to the background history.
The eldest child E has not spent time with the father since Easter 2015. The father was anxious to rebuild his relationship with the child and was hoping for some therapeutic intervention.
The child B has been diagnosed with autism spectrum disorder. The mother resides in South-Western Sydney and is not in employment but receives government benefits by way of parenting benefits and a carer’s benefit for the child B. The two eldest children attend school in the mentioned area. The mother is in a relationship and asserts that she does not live with her partner, notwithstanding the eldest child’s assertion to the Family Consultant that the mother’s boyfriend indeed is living in their household.
The father resides at Suburb H with his partner and her two children from a prior relationship aged eight and two. The eldest child has been diagnosed with autism spectrum disorder. As at November 2014 they had only been residing together for a short period but had been in a relationship for about two years.
The two youngest children B and C have been spending alternate weekends with the father on weekends when his partner’s children are also present. The father is employed as a truck driver working Monday to Friday but finishing early on the Friday that he spends with the two youngest children.
The Family Consultant identified in the Child Responsive Program Memorandum the key issues for determination. They were identified as:
a)The most appropriate arrangements for parental responsibility of the children;
b)The extent and seriousness of family violence instigated by the father during and following the parents relationship;
c)The most appropriate arrangements for the two youngest children to spend time with the father;
d)Whether or not the father uses alcohol or other drugs in a manner that impinges on his capacity as a parent;
e)Whether the mother has unduly influenced the eldest child’s views; and
f)Whether or not the mother is able to promote a positive relationship between the children and the father in circumstances that are safe and appropriate to promote those relationships.
As referred to above the mother and father have substantially resolved many of the matters in dispute.
On interview with the Family Consultant the eldest child E then aged 12 reported recall of an incident when she was six years of age clearly indicative of violence perpetrated by the father on the mother. It appears from the Memorandum that the Family Consultant has some reservations as to the child’s report and suggests that the child may have been subject to some pressure by the mother regarding her own views and relationships.
The child B, who suffers from autism spectrum disorder, is presently engaged with speech therapy and occupational therapy with the mother reporting that these interventions are assisting. The father is only aware as to the child’s circumstances from what limited information he has been provided by the mother. The mother proposes that the child B presently attends a public primary school near where she currently lives.
On interview with the Family Consultant the child B provided information that suggested that the mother was indeed living with her partner and that the child identified strongly with the mother’s partner as his father. The child identified the father as another dad that he sees only on weekends.
The child appeared to have recollections of incidents between the mother and father during their cohabitation but said that he did not feel scared or worried with his father. The child’s report to the Family Consultant is indicative of the mother being unsupportive of the child’s relationship with the father, the mother among other things referring to the father as a “bogan”.
The youngest child C on interview with the Family Consultant presented no health, developmental, emotional or behavioural concerns. At the time of interview C was attending day-care two days per week and was due to start school in the 2017 academic year with the mother proposing preschool attendance during 2016. The mother reported that C, whilst initially reluctant to go with the father, otherwise appeared to enjoy his time with the father when he goes.
The mother reported to the Family Consultant that she had been isolated and controlled through the course of the relationship with the father including assertions as to non-consensual sexual intercourse during the relationship.
The mother made various allegations as to specific conduct by the father that she had reported to the police although no charges against the father had been forthcoming. The father reported to the Family Consultant that he used “speed” as an adolescent but had no current illicit drug use. Whilst conceding that he consumed alcohol the father asserted that he did not drink when the children were with him and that he held no concerns regarding the mother’s use of alcohol or other drugs.
The mother asserted that she had sought assistance with her mental health following separation, attributing those difficulties to the father’s alleged abuse of her during the relationship. The mother reported no current problems regarding her mental health.
The Police Records
Documents were produced on subpoena by the NSW Police Service (Exh E).
The police history reveals that the father was involved in alcohol related incidents in December 2002 and July 2006 that brought him to the attention of the police.
The background circumstances to the current apprehended domestic violence order arises from incidents in May 2014. Police records reveal that the father was intimidating and aggressive towards the mother when they appear to have inadvertently been at the same service station on the highway at Suburb F. Two days later at about 5.30 pm the father attended at the mother’s home and sought to take the two younger children with him in his car. The mother told the father that he was not to take the children as he did not have a valid driver’s license. The father became aggressive towards the mother and the maternal grandfather. The mother told the father that he was not to take the children. The father shoved the maternal grandfather out of the way and abused the mother. The father placed the children in his car at which the mother attempted to remove the children. The mother then called the police and heard the father drive off with the children. Thereafter the father called the mother numerous times on her phone and was yelling at her through the phone. The father returned with the children to the mother’s home that evening at about 7.00 pm and abused the maternal grandfather. The police were again called and to their observation the mother was very anxious and upset when explaining what had taken place. The mother asserted to the police that she lived in fear of the father.
The incident caused the police to seek an apprehended domestic violence order for the protection of the mother and that order is referred to above.
Notwithstanding the existence of the apprehended domestic violence order the father again attended the premises where the mother was present on 29 August 2014 following a verbal argument over the phone with her. The father arrived at 4.30 pm and began banging on the front door of the premises demanding to speak to the mother so as to “resolve their issues”. The mother refused to open the door and told the father to leave. The father refused to leave the premises and continued to shout at the mother from the front yard of the premises. The police arrived a short time later to find the father standing outside the residence. The police granted the father access to the home for the purposes of discussions with the mother in relation to the future arrangements for the children and remained until the father left the premises. Surprisingly no action was taken by the police in relation to this incident notwithstanding that it appears to be a breach of the apprehended domestic violence order.
The Evidence
The Father’s Proposal
As to the discrete issues for determination, the father proposes orders that provide:
a)That within 24 hours the mother is to provide to the father the details of the school or preschool attended by each of the children;
b)That both the mother and father be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress;
c)That each party is at liberty to attend at the children’s respective schools for the purposes of any function or activity normally attended by parents; and
d)That the mother shall not be permitted to change the school attended by the children, or any of them, without first having provided the father with not less than 60 days written notice of the new proposed school and details as to when it is proposed that the children, or any of them will commence at that school.
The father says that he is seeking orders that would facilitate him attending special school events and occasions such as assemblies, graduations and special occasion including the youngest child’s first day at school.
The father acknowledges the mother’s concern that he may seek to follow her or the children to the mother’s residential address and further acknowledges that that concern is addressed by final orders made on 15 March 2016.
The father says that he will not approach the mother at any school events or intimidate or harass her and will use his best endeavours to sit away from her at any school occasions and organise separate parent teacher interviews. He seeks to receive information from the schools as to the children’s progress.
He acknowledges the mother’s concern in relation to his consumption of alcohol. In oral evidence he said that he would drink “occasionally six schooners each day”. He was not prepared to accept the mother’s concerns about his alcohol consumption.
Ultimately he conceded that he would agree to an order that he was not to consume alcohol for a period of 12 hours prior to the children coming into his care and during the time that the children were in his care. The father sought some relaxation of that rule in relation to his engagement party and wedding with that relaxation being agreed to by the mother. The father’s concession resolved one of the outstanding issues.
When specific incidents alleged by the mother as to intimidation and or abuse by the father were put to him he either could not recall or denied the allegations. The father noted that the allegations put to him were all prior to the current apprehended domestic violence order and that there had been no further incident (presumably save for the further incident referred to in the police material above) between he and the mother.
The father acknowledged that he was prepared to consent to orders sought by the ICL in the following terms:
a)That the father be and is hereby restrained from attending at the school of the children other than for the purpose of attending at events to which parents are normally invited or for the purposes of arranged interviews;
b)That the father be and is hereby restrained from approaching the respondent mother whilst present at the school of the children; and
c)That the father be and is hereby restrained from attending at or otherwise seeking to locate or attend the residence of the mother.
The Mother’s Proposal
The mother proposed orders in the following terms:
a)That the father is restrained from attending school activities or school events (including preschool activities or events) that parents are ordinarily entitled to or invited by the school to attend unless as agreed by the mother in writing; and
b)That both the mother and father are restrained from consuming alcohol to excess which affects their parenting capacity to care for the children whilst any of the children are in their care.
The mother gives evidence of various incidents of domestic violence perpetrated by the father. His conduct involves abuse of alcohol, verbal abuse and intimidation of the mother and physical abuse of the mother. The mother has also been abused by the father’s brother.
The mother for her part says she does not consume alcohol nor has she done so for about five or six years. She expresses concern as to the father’s abuse of alcohol and refers to alcohol related incidents in December 2002 and 2005.
The mother expresses concern that once the apprehended domestic violence order expires, the father’s abusive and intimidating behaviour towards her would resume, it being common ground that things have been much more settled in this regard since the apprehended domestic violence order was in place.
The mother expresses concern that the father would become verbally abusive of her in the presence of the children or other people at the children’s schools in the event that he was able to attend.
In her oral evidence the mother conceded that her concerns in relation to the father having knowledge of her residential whereabouts were addressed by the previous final orders in that regard. The mother further agreed that her concerns as to the father’s conduct could be met by injunctive orders in similar terms to the apprehended domestic violence orders.
The Independent Children's Lawyer’s Final Proposal
At the conclusion of the parties’ oral evidence the ICL provided a final minute of order for the Court’s consideration. Various orders were agreed and are to be made by consent in the following terms:
a)That the father be and is hereby restrained from consuming alcohol during the period commencing 12 hours prior to and during the period when the children are in his care;
b)That the previous order is suspended on 14 May 2016 and 3 September 2016 during the father’s engagement party and wedding and wedding reception and during these periods the father shall not consume alcohol excessively;
c)That the father shall use his best endeavours to ensure that his partner Ms D does not consume alcohol whilst the children are in his care;
d)That the children B and C shall be in the care of the father on the weekend of 3 September 2016 if not his usual weekend with the children and he shall forego his next due weekend with the children pursuant to the orders herein;
e)That the father be and is hereby restrained from approaching the mother whilst present at the school of the children;
f)That the father be and is hereby restrained from seeking to locate and attend at the residence of the mother.
Parenting
The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a 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 (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in respect of final proceedings where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Additional Considerations: s 60CC(3)
These are:
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 views;
b)the nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
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;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child);
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;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
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;
m)any other fact or circumstance that the court thinks is relevant.
(emphasis added)
The considerations in this matter are discrete. Regard has been had to each of the primary and additional considerations set out above.
Discussion
During the course of the short hearing the parties reached agreement on a number of specific issues as referred to above.
Ultimately the dispute centred around the following matters:
a)Whether the father should be entitled to receive documents from the children’s school as to their attendance and progress and to receive photos and newsletters such as are normally distributed to the parents;
b)Whether the father should be entitled to attend at the children’s school for the purposes of events where the attendance of either or both parents is to be reasonably expected and not otherwise; and
c)Whether the father should be required to provide to the mother not less than 7 days’ notice of his intention to attend a school event should he be permitted.
Both younger children have meaningful relationships with their parents. The final orders consented to by the mother and father will see a continuation of those meaningful relationships into the future.
Whilst it is not necessary to frame orders having regard to the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse and neglect or family violence, consideration needs to be given to the adverse impact on the younger children of attempts to conceal from the father the circumstances of their schooling. To require these children to engage in that enterprise in itself could represent psychological harm to the children. It could only undermine their relationship with the father should they seek to comply with the requirements of concealment or indeed undermine their relationship with the mother should they choose themselves to disclose to the father where they are at school. Should the father inadvertently otherwise become aware of the children’s schooling circumstances then that in itself where the children are aware of the mother’s concern would put unnecessary stress on the children. Clearly a concealment of the children’s schooling circumstances is inappropriate.
The two younger children are at an age where any views expressed by them would be afforded little weight. However there is no evidence of any views expressed by the children in relation to these discrete issues for determination.
The children have established relationships with their mother as their primary carer and have a significant relationship with the father. The father’s relationship with the younger children will continue to be substantial and significant as a consequence of the final orders made with the consent of the parties.
Since separation the mother has been significantly involved in making major long-term decisions in relation to the children. Notwithstanding conflict between the parties the father has been able to spend time with the children and communicate with the children in the past and it is clear that by reason of the consent orders he will continue to do so into the future.
There is no evidence as to the father meeting his obligation to maintain the children, although in the context of these discrete issues there was little opportunity to adduce such evidence. Otherwise the mother remains at the significant financial provider for the children.
A determination of the discrete issues does not involve any change in the children’s circumstances of any relevance, save that the father would be able to engage more readily in the children’s schooling and education.
There is no practical difficulty or expense in relation to the children spending time with and communicating with each parent.
Both parents make no adverse comments as to the capacity of the other parent to care for the children on a day-to-day basis. The mother has agreed to the children spending substantial and significant time with the father. Her reservations as to his alcohol abuse have been met by his readiness to consent to an abstinence from alcohol when the children are in his care.
The two younger children are of an age where their level of maturity would make it inappropriate for them to be engaged in concealment from the father of their day-to-day schooling activities and the identification of the school to him. For the mother to expect the children to be able to undertake the burden of that subterfuge while spending time with the father is completely unrealistic. To engage the children in such an activity would be inappropriate.
The mother clearly has some sensitivities in relation to any exposure by her to the father. This has perhaps framed her attitude to these discrete issues, seeking orders as to the concealment of the children’s schooling circumstances in an inappropriate way. The father for his part has demonstrated by his conduct an unacceptable attitude to the children and his responsibilities of parenthood by his aberrant conduct towards the mother in the presence of the children. The resolution of these proceedings will hopefully see significant improvement in regard to these issues.
The mother alleges abuse, physical intimidation and violence at the hands of the father. Notwithstanding his denials a consideration of the parties’ engagement with the NSW Police provides a strong indication that the mother’s assertions are indeed correct. However it is common ground that save for one incident since the making of the apprehended domestic violence order there has been little or no conflict between the mother and father. It is the Court’s expectation that such a circumstance will continue. However it is appropriate to make orders addressing this aspect of the father’s behaviour.
By reason of the mother’s concern as to the father’s behaviour, should he be permitted to attend at the children’s school he should do so on notice to the mother such that she is able to form her own view as to whether she will attend herself. The mother should not be given the right to refuse the father permission to attend appropriate school events. Such would be a recipe for further conflict.
There is presently a final apprehended domestic violence order current to May 2016. The mother may seek to extend that order, such application is a matter for her.
It is appropriate to endeavour to make orders that would be least likely to lead to the institution of further proceedings.
The eldest child E will engage with the father on her terms in accordance with final orders made on 15 March 2016 and the father expresses the hope that that may be achieved in a meaningful way through therapeutic intervention.
B is now aged seven and has been attending school for several years. The child C is nearly five and will commence formal schooling in 2017, at which time both younger children will be at the same school.
By reason of orders made on 15 March 2016 the younger children will spend time with the father during school term on alternate weekends from Friday evening until Sunday evening and for block periods of time during school holidays and on other special occasions.
It would place a most inappropriate burden on the children to require them to keep from the father details of the school that presumably they both proudly attend. It must be inferred that during the regular and substantial time that these children will be engaged with the father that issues as to schooling will arise particularly as the father will no doubt have an inquiring mind as to their school attendances and progress. To require the children to refrain from disclosing to the father their schooling whereabouts is simply impracticable particularly for children of their age.
In all of the circumstances it is appropriate and in the best interests of the children that the father be aware as to their schooling circumstances, be able to receive the usual information as to his children’s progress and attendance at school and be able to attend at the school on occasions significant to the children’s welfare where the attendance of either or both parents is to be reasonably expected.
However the question remains whether the father should be required to notify the mother of his proposed attendance so that presumably she can be emotionally prepared and whether he should be required to distance himself from the mother whilst in attendance at school.
The mother’s presentation in oral evidence clearly revealed a nervous and anxious litigant. It is likely that her presentation was as a consequence of the relationship history and the father’s very presence in the courtroom. He presents as a physically intimidating person.
The mother would be comforted by injunctive orders as to the father’s behaviour should the father be able to attend at school events. It is noted that his attendance at such events is supported by the ICL and is most properly supported by the ICL in the best interests of the children.
Accordingly orders will be made facilitating the father’s attendance at school subject to appropriate restraints and facilitating the father receiving the usual information as to the children’s schooling.
Otherwise orders will be made by consent as proposed by all parties.
Orders are made as set out at the forefront of these Reasons for Judgment.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 April 2016.
Associate:
Date: 8 April 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Consent
-
Remedies
-
Procedural Fairness
-
Costs
-
Stay of Proceedings
0
1
1