Sinclair and Hatcher
[2014] FCCA 395
•6 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINCLAIR & HATCHER | [2014] FCCA 395 |
| Catchwords: FAMILY LAW – Applicant seeks a declaration pursuant to s.90RD that the relationship was a “de facto relationship” – parties in a relationship for five years and have one child – parties did not live together, did not share property, did not pool resources, had a very turbulent relationship – found the parties did not live together on a “genuine domestic basis” and that the parties’ relationship was not a “de facto relationship.” Parenting Matters – Mother seeks father have supervised daytime only time with the parties’ son aged four until the child starts school and then that time gradually increase to overnight unsupervised time – Father seeks immediate unsupervised time with the child graduating to overnight time within six weeks. Held child immediately start spending unsupervised time with the father to increase to overnight time within two months. |
| Legislation: Family Law Act 1975 ss.4AA, 60B, 60CA, 60CC, 61DA, 65DAA, 90RJ, 90RD |
| Jonah v White [2011] FamCA 221 Keene & Scofield (No.2) [2013] FCCA 1107 Sinclair & Whitaker [2013] Fam CAFC 129 Hayes & Markee [2008] NSWCA 10 |
| Applicant: | MS SINCLAIR |
| Respondent: | MR HATCHER |
| File Number: | MLC 7391 of 2012 |
| Judgment of: | Judge Bender |
| Hearing dates: | 23, 24, 26, 27 September 2013 18, 19, 20, 21 November 2013 |
| Date of Last Submission: | 21 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | J A Middlemis |
| Counsel for the Respondent: | Mr Hall |
| Solicitors for the Respondent: | CCS Lawyers |
ORDERS
Section 90RD Application
The mother’s application pursuant to s.90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.
Parenting
The parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2009 (“X”).
X live with the mother.
X spend time and communicate with the father as follows:
(a)From 1.45pm until 3.45pm on 9 March 2014 and 16 March 2014 with changeover to occur at (omitted) Children's Contact Service (“(omitted)”) and a member of the (omitted) staff shall accompany the father and X on an outing from (omitted) for up to an hour during such time;
(b)From 1.45pm to 3.45pm on Sunday 23 March 2014 with changeover at (omitted);
(c)From 12.00 Noon to 4.00pm Sunday 6 April 2014, 13 April 2014, 20 April 2014 and 27 April 2014 with changeover at (omitted);
(d)
From 5.00pm Saturday to 5.30pm Sunday commencing
3 May 2014 and each alternate weekend thereafter;
(e)
From 4.00pm Friday to 5.30pm Sunday commencing
31 October 2014 and each alternate weekend thereafter;
(f)For two periods of three days in the long summer vacations in 2014/2015 and 2015/2016 as agreed between the parties and failing agreement the father’s time with X be extended to 5.30pm Monday on the first two weekends in the summer vacation that X is with the father pursuant to Order 4(e) herein;
(g)In the long summer vacation 2016/2017 for a period of 5 days as agreed between the parties and failing agreement from 10.00am Boxing Day;
(h)In the long summer vacation 2017/2018 for a period of 7 days as agreed between the parties and failing agreement from 10.00am Boxing Day;
(i)In the long summer vacation 2018/2019 and each long summer vacation thereafter for a period of 10 days as agreed between the parties and failing agreement from 10.00am Boxing Day;
(j)For three days in each of the term school holidays commencing in the first term holidays 2015 as agreed between the parties and failing agreement X’s time with the father be extended to 5.30pm on the Monday of the weekend during the term holidays X is spending with the father pursuant to Order 4(e) herein;
(k)If X is not otherwise with the father on Father’s Day pursuant to these orders then on the Father’s Day weekend in 2014 from 5.00pm Saturday to 5.30pm Sunday and from 4.00pm Friday to 5.30pm Sunday on the Father’s Day weekend 2015 and each year thereafter;
(l)By telephone each Wednesday and on X’s birthday between 5.00pm and 5.30pm with the father to call the mother’s mobile number and the mother shall ensure her phone is charged and that X is able to take the father’s call;
(m)From 10.00am Boxing Day to 5.30pm 27 December 2014 and each year thereafter;
(n)As otherwise agreed between the parties in writing.
Changeover for the time X spends with the father pursuant to Order 4(d) and Father’s Day 2014 shall take place by the mother delivering X to the home of Ms P and if Ms P is unavailable, to the foyer of (omitted) Police Station at the commencement of time and the father shall deliver X to the mother in the foyer of the (omitted) Police Station at the conclusion of time unless otherwise agreed between the parties in writing.
Changeover for the time X spends with the father pursuant to Order 4(e), 4(f), 4(g), 4(h), 4(i), 4(j), 4(k) and 4(m) herein shall take place by the father collecting X from the foyer of (omitted) Police Station at the commencement of time and the mother collecting X from the home of Ms P or if Ms P is unavailable the foyer of the (omitted) Police Station at the conclusion of time unless otherwise agreed between the parties in writing.
X’s time with the father pursuant to these orders shall be suspended as follows:
(a)On Mother’s Day weekend;
(b)From 10.00am on the Mother’s birthday, 26 March and 16 December;
(c)From 5.30pm Christmas Eve to 10.00am Boxing Day;
(d)From 4.00pm on X’s birthday; and
(e)From the long summer vacation 2016/2017, time pursuant to Order 4(e) shall be suspended for one weekend in the long summer vacation as nominated by the mother upon her giving the father 28 days’ notice in writing.
In the event either party is delayed by more than 15 minutes in collecting or returning the child, they shall text the other party to notify them of the reason for the delay and their anticipated time of arrival.
When X is spending time with the father he shall be restrained from bringing X into contact with Ms M, D or Ms I unless the father is also present.
Each party shall be entitled to attend X’s kindergarten and school for any activities or functions to which parents are invited and the father shall notify the mother by text message of his intention to attend any such function or activity 48 hours prior to such function or activity.
Each party shall be authorised to obtain:
(a)From any kindergarten or school X attends, copies of school reports, newsletters, photograph order forms and other such information ordinarily provided to parents;
(b)From any medical practitioner X attends, information concerning X’s health and each party shall keep the other informed of the name and contact details of any health professional whom X consults.
Each party keep the other informed of the address at which X ordinarily lives or spends time and the contact telephone number and notify the other within 72 hours of any change to such information.
In the event X and the father stay overnight other than at the father’s residence, the father shall provide the mother with the address where they are staying by text message.
Save for an emergency, or as provided for in these orders, the parties shall communicate by email and shall provide the other with an email address to be utilised for that communication.
Each party shall advise the other of any serious illness or injury suffered by the X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The parties and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X, and from permitting any other person to do so.
The mother undertake individual counselling with a psychologist nominated by Mr O in order to help the mother adjust to the obligations imposed upon her by these orders and the mother shall provide to the counsellor a copy of this Order, the reasons for judgment in relation to parenting matters, the psychiatric report of Dr T dated 30 April 2013 and the Family Reports of Mr O dated 20 February 2013 and 26 August 2013, and such counselling to continue on a regular basis until the counsellor advises the mother in writing that the purpose of the counselling has been achieved.
For the purposes of Order 17 herein, it is requested that Mr O first speak to the mother’s current counsellor to ascertain whether that counsellor is able to undertake the counselling referred to in Order 17 herein and thereafter Mr O advise the mother of the counsellor nominated by him.
The father forthwith provide a copy of these orders to Ms P and it is requested Ms P assist with the changeover in accordance with Order 7 and Order 8 herein.
IT IS NOTED that publication of this judgment under the pseudonym Sinclair & Hatcher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7391 of 2012
| MS SINCLAIR |
Applicant
And
| MR HATCHER |
Respondent
REASONS FOR JUDGMENT
Introduction
In this case there are two distinct matters for determination by the Court.
The first matter arises from the applicant mother’s application pursuant to section 90RD of the Family Law Act 1975 (“the Act”) that this Court make a declaration that the parties were in a de facto relationship for the period December 2006 to September 2011.
The second matter arises from the respondent father’s application for parenting orders relating to the parties’ son X born (omitted) 2009 (“X”).
Having given a brief background to the matter, it is my intention to separately address each of the matters requiring determination.
Background
The mother was born on (omitted) 1967 and is aged 45 years. The mother is engaged in home duties. The mother has not re-partnered.
The mother has two children from her previous relationship, A born (omitted) 2000 (“A”) and B born (omitted) 2003 (“B”). A is aged 13 years and B is aged 10 years.
The father was born on (omitted) 1956 and is aged 57 years. The father is a (occupation omitted). The father has not re-partnered.
The father was previously married and has four children from that marriage, C, born (omitted) 1995 (“C”), D (“D”), born (omitted) 1998, E (“E”), born (omitted) 2003 and F (“F”), born (omitted) 2005.
The parties to these proceedings were in a relationship from December 2006 until September 2011.
The mother obtained an interim Intervention Order against the father in the Maryborough Magistrates’ Court in February 2012.
In April 2012 the Maryborough Magistrates’ Court granted the mother a 12 month Intervention Order naming A, B and X as affected family members.
On 14 August 2012 the father filed an Initiating Application in the Federal Circuit Court of Australia seeking parenting orders in relation to X.
On 19 September 2012 Federal Magistrate Burchardt (as he then was) made interim orders by consent that the parties have equal shred parental responsibility for X, that X live with the mother and spend supervised time with the father at (omitted) Contact Centre (“(omitted)”).
On 24 September 2012 the mother filed a Response seeking parenting orders in relation to X and de facto property orders.
On 9 November 2012 the father filed a Reply disputing that the parties’ relationship was a de facto relationship.
Having not spent any time with X since the parties separated in September 2011, on 12 November 2012 the father commenced spending two hours per fortnight supervised time with X at (omitted) Children's Contact Service in (omitted) (“(omitted)”). The father’s supervised time with X at (omitted) continues.
On 26 February 2013, in the Federal Circuit Court at Castlemaine the matter was listed for final hearing as to the mother’s application for a declaration pursuant to section 90RD of the Act that the parties were in a de facto relationship from December 2006 to September 2011 and for parenting matters. There was a notation to the orders that the trial proceed on the basis the mother is the applicant.
Application for section 90RD declaration
It is the mother’s belief that she and the father were in a de facto relationship from December 2006 until their breakup in September 2011.
Whilst conceding that the parties never lived together in the same residence, it is the mother’s evidence that she and the father were in a committed and loving relationship during which time they shared their life and had a child together.
The father agrees that he and the mother were in a relationship from December 2006 until September 2011. It is the father’s evidence however that despite the parties’ love for one another, theirs was a volatile and difficult relationship during which they “broke up” at least 50 to 70 times and that the parties never achieved the level of commitment or merging of their lives where they could be considered to be a single unit.
The law
Statutory provisions
Section 90RJ of the Act provides:
Any party to the primary proceedings may apply for a section 90RD declaration.
Section 90RD of the Act provides:
(1) If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA of the Act sets out the definition of de facto relationships. Section 4AA provides as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection(6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The legal principles
In Jonah v White [2011] FamCA 221 Murphy J held that a declaration pursuant to section 90RD of the Act does not involve the exercise of judicial discretion but is rather a determination of fact.
At paragraph 39 His Honour held:
The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.
In this matter the jurisdictional fact to be determined is whether the parties had a relationship as a couple living together on a genuine domestic basis.
Justice Cronin in the matter of Taisha & Peng & Anor [2012] FamCA 385 held that section 4AA(1) of the Act contains the mandatory requirements for determining whether there is a de facto relationship and that it is not necessary to look to section 4AA(2) of the Act unless there is “some definitional uncertainty from initial readings of section 4AA(1).”
Justice Cronin held that the matters contained in section 4AA(2) of the Act are to be used only as a guide for the purposes of section 4AA(1) of the Act.
Judge Brown in the matter of Keene & Scofield (No.2) [2013] FCCA 1107 summarised the legal principles applicable to the determination of whether there had been a de facto relationship as defined by the Act. His Honour’s summarisation of those principles are as follows:
38.In Taisha v Peng[1] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
[1] See Taisha v Peng (2013) 48 FamLR 150 at 152
39.Mushin J in Moby & Schulter[2] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”. Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and attribute relative degrees of importance. It is the “composite picture” which is important.[3]
[2] See Moby & Schulter (2010) FLC 93-447 at 85,063
[3] See Taisha v Peng (supra) at 153
40.In Jonah Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”
43.In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[4]
[4] See Moby & Schulter (supra) at 85,067
44.The existence or otherwise of a marriage is established by one unequivocal event, which is readily memorialised by official edict. No one event is necessarily definitive of the existence of a de facto relationship. In Moby Mushin J made the following comments, which seem to me to be germane to the present case:
“The parties' relationship may be seen as having gone through a number of different phases. The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship. Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”[5]
[5] See Moby & Schulter (supra) at 85,067
45.In this case, both Mr Keene, but particularly Ms Scofield, assert that the relationship went through a number of different phases. It also clearly had a number of different aspects. It will be necessary for me to outline the various phases of their relationship and step back from it to determine what was the nature of their relationship together, from the totality of the facts arising. It is at the end of that deliberation that I must be satisfied as to the existence of a domestic relationship.
46.Domestic derives from the Latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs[6] In this context Cronin J in Taisha v Peng said as follows:
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[7]
47.It is clear from the content of section 4AA(5) that a de facto relationship does not have to be exclusive in order to satisfy the definition contained in subsection (1). A de facto relationship can exist, even if one of the person’s is legally married to someone else or even in another de facto relationship.
48.In this context, Murphy J did not consider that temporal or quantative aspects were central to the existence or otherwise of a state of coupledom existing between the parties concerned. Rather, in his view, the issue turned on the nature of the relationship in question. In Jonah he said as follows:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.[8]
[6] See the Australian Oxford Dictionary
[7] See Taisha v Peng (supra) at 153
[8] See Jonah v White (supra) at 472
Thus it can be seen that in order to determine whether the parties in this matter were in a de facto relationship, the Court must consider the “nature of their union, whether there was a merger of two individual lives into life as a couple”.
The Court must be satisfied that the parties lived together as a couple on a genuine domestic basis. No one particular factor will determine whether the parties have lived together in a de facto relationship but rather the relationship “as a whole” must be considered, although guidance can be taken from the factors enunciated in section 4AA(2) of the Act.
The evidence
The mother
The mother relies on the following documents:
a)the mother’s affidavits filed 10 September 2012 and 11 September 2013;
b)the affidavit of Ms P filed 11 September 2013.
The father relies on the following documents:
a)the father’s affidavits filed 13 January 2013, 14 May 2013 and 18 September 2013;
b)the affidavit of Ms L filed 31 January 2013;
c)the affidavit of Mr B filed 7 February 2013;
d)the affidavit of Mr T filed 7 February 2013;
e)the affidavit of Mr M filed 16 February 2013;
f)the affidavit of Ms M filed 3 December 2013; and
g)the affidavit of Ms S filed 3 December 2012.
In addition to the affidavit material filed by the parties, a number of documents were tendered into evidence. Amongst those tendered documents were transcripts of a large selection of the hundreds of text messages sent between the parties during their relationship, photographs of the parties and the parties’ respective children taken during the relationship, a hand-written note from the father written in or about 2009 and a letter from the father’s doctor, Dr A, dated 5 February 2009. The relevance of these documents will be expanded upon later in this judgment.
Whilst much of the parties’ evidence differed, most of those differences, I believe, stem from the parties’ recollections and perceptions of events and can be seen through the prism of the impact on them of the ending of their relationship, rather than being any deliberate attempt by the parties to mislead the Court.
There is however one very significant issue where the parties’ evidence differs. That relates to whether X’s conception was something both parties planned as is the mother’s evidence or the mother’s unilateral decisions as is the father’s evidence. The parties’ evidence on this issue will be considered later in the judgment.
Background
The mother first met the father in his professional capacity as a (occupation omitted) when the mother and her then partner Ms K jointly purchased a house together in Melbourne in Property T.
Subsequently, the mother and Ms K sold the property at Property T and again appointed the father in his professional capacity as (occupation omitted) engaged for the purposes of selling the Property T property.
In 2005, the mother separated from her partner Ms K and in 2006 the mother and Ms K appointed the father to sell their jointly owned property Property A, (“Property A”).
On 30 December 2006, the sexual relationship between the mother and father commenced. It is the mother’s evidence that it is from this date that the parties’ de facto relationship began.
At the time the parties commenced their sexual relationship the father was living with his former wife and four children in the property owned jointly by he and his then wife at Property E, (“Property E”).
In July 2007, the settlement of the sale of Property A was completed. The mother received $141,000.00 as her share of the proceeds of that sale. After the settlement of the sale the mother continued to rent Property A from the purchasers for approximately six months.
In October 2007 the father and his former wife separated and the father moved from Property E into a property owned by him at Property C, (“Property C”).
In December 2007 the mother moved out of Property A with her sons A and B and rented the property at Property K. (“Property K”) from the father at an agreed rental of $200.00 per week.
The father has suffered from Crohn’s Disease for the majority of his adult life. Between 2007 and 2010 the father’s health deteriorated considerably and in February 2008 the father was prescribed a chemotherapy drug, Methoblastin (Methotrexate).
In January 2009 the mother became pregnant with X. As noted, the question as to whether X’s conception was planned by the parties jointly is disputed by the parties.
In February 2009, the mother, A and B moved from Property K to a rental property leased in the mother’s sole name at (omitted) (“(omitted)”).
In September 2011 the mother received a notice to vacate (omitted).
It is the mother’s evidence that when the father failed to commit to her moving in with him when she received the Notice to Vacate (omitted) the mother made the decision that the parties’ relationship was over. The mother entered into a contract in October 2011 for the purchase of a property at Property M, a property previously owned by the mother and her first husband in 1990.
The mother, A, B and X moved to Property M. in December 2011.
At no time during the parties’ relationship did the parties live together.
During the entirety of the parties’ relationship the mother was in receipt of a single parents pension and perusal of the Centrelink records obtained via a Freedom of Information discloses that the mother at all times advised Centrelink that she was single.
The entry dated 18 February 2010 from the Centrelink records show the mother as stating “she cannot live with the father of the child (sic X) as he is not willing to commit.”
The mother applied for and received child support payments from the father shortly after X’s birth.
In February 2012 Victoria Police made an application for an Intervention Order on behalf of the mother. The complaint filed on behalf of the mother by Victoria Police states as follows:
The afm and the respondent had previously been in an intimate relationship for approximately five years which the afm eventually ended in September 2011. The parties never lived together however they have one child of the relationship who is two years old. The respondent has never been physically violent the afm, however the afm states that he has been emotionally manipulative from the start of the relationship. The respondent continued to make false promises about a more committed future with the afm, for example living together, but always put them off. More recently prior to and since separating the respondent has begun going for long periods of no contact before turning up at the afm’s house at all hours of the night unannounced.
In March 2012, the Magistrates’ Court at Maryborough granted the mother a 12 month Intervention Order against the father by consent with the denial of the allegations naming A, B and X as affected family members.
In July 2013, the Maryborough Magistrates’ Court extended the Intervention Order for a further two years.
As a matter of completeness, the parties are not married to one another and never have been and in addition they are not related by family. The matters set out in section 4AA(1)(a) and (b) are therefore made out.
Did the parties live together on a genuine domestic basis?
It is common ground between the parties that they at all times maintained separate residences.
It is the mother’s evidence that whilst they did maintain separate residences, the parties spent considerable time with each other and in particular they regularly stayed together in her residence.
It is the mother’s evidence that the father would take meals with she and A and B and X after he was born, would stay overnight with her, would come and go often during the day, would contact her to see if the family needed milk or bread or other supplies when he was coming to visit or stay and that she, the father and their children would go on outings together such as to the snow, to dinner and to visit family and friends.
It is argued on behalf of the mother that, as noted by Justice Murphy in Jonah v White, the maintenance of separate residences is not necessarily inconsistent with the parties being in a de facto relationship and that in this matter the lack of a common residence does not of itself indicate that the parties were not in a de facto relationship.
It is the respondent’s evidence that the parties’ relationship was very “stop start” especially after the mother moved to Property K.
It is the father’s evidence that they had 50 to 70 “break-ups” and that that some of those break ups lasted the weekend and others lasted three or four weeks.
It is the father’s evidence that at no time did he consider the mother’s house to be their common residence. It is his evidence that he had no furniture or belongings at the mother’s home and that all his clothes and toiletries were kept at Property C.
It is the father’s evidence that the mother never washed any of his clothes and that either he or his own mother attended to his laundry.
It is the father’s evidence that the Property K property had a 1.8 metre high front gate which the mother kept padlocked. He did not have the key to the padlock and the mother did not provide him with one. It is argued on behalf of the father that his not having a key shows that he was unable to “come and go” at will and that his entry to the property was very much determined by the mother and whether the relationship was “on” or “off.”
It is the father’s further evidence that he did not have a key to the (omitted) property and, as was the case with the Property K property, he was not able to “come and go” at will but rather his ability to spend time at (omitted) was determined by the mother and was dependent upon the status of their relationship at any given time.
It is the father’s evidence that the mother only visited his residence at Property C on a dozen occasions in the five years of their relationship.
It is therefore the father’s submission that at no time could he and the mother ever have been considered to be living together on a genuine domestic basis.
Section 4AA(2) Factors
At this time I intend to consider the factors set out under section 4AA(2). In so doing I recognise none of these factors are of themselves determinative of the question of whether the parties were in a de facto relationship but rather are to be regarded as a guide to that question.
The duration of the relationship
In this matter the parties were in a relationship from 30 December 2006 until September 2011, a period of nearly five years.
It is the mother’s evidence that during this period she and the father were committed to each and to their relationship and that both of them had an expectation that it would be a lifelong relationship. It is the mother’s evidence that she and the father considered themselves to be soul mates, that they were very much in love and both confident of a bright future together. The mother gave evidence that the father gave a speech at her fortieth birthday party in which he told the gathering he was so lucky to have found her and described her to all at that function as “his soul mate.”
Whilst the mother concedes that there were some difficult times during their relationship arising from the father’s health issues, his difficult separation from his first wife, the father’s protracted family law proceedings that he was embroiled in with his former wife, the difficulties in her relationship with his children from his first marriage and particular his daughter D, it is the mother’s evidence that the parties were always able to work through these difficulties and that their commitment to each other and to their relationship was strong.
It is the respondent’s evidence that whilst he and the mother did love each other, theirs was a dysfunctional relationship with multiple arguments, break ups and an inability to overcome their difficulties and find a way to make their relationship permanent.
The nature and extent of their common residence
As set out previously in this judgment, the parties did not have a common residence and for the entirety of their relationship they each maintained their own home.
It is the mother’s evidence that the father regularly stayed in her home and that he would come and go at will.
It is the father’s evidence that the parties always maintained their own residences and that at no time did he ever consider the mother’s home to be his residence.
It is the father’s evidence he did not have a key to the lock on the gate of Property K and he did not have a key to (omitted). His ability to visit the mother was very much dependant on her willingness to let him into her home and this would be dependent on the level of acrimony between them at the time.
It is the father’s further evidence that at no time did he ever have furnishings, clothes or toiletries at the mother’s home and that other than meal preparation, neither performed any domestic duties for the other.
It is the father’s evidence that for the entirety of their relationship, the mother only stayed at his home on twelve occasions at most.
Whether a sexual relationship exists
The parties had a sexual relationship during the five years of their relationship. Each party was faithful to the other and each had an expectation that the other would be monogamous within that relationship. It is apparent from the parties’ evidence that this was an important aspect of their relationship, though at times it caused discord between them.
Before the Court are transcripts of text messages between the parties in which the mother makes a complaint to the father that the father has visited her, been intimate with her and then has left in the early hours of the morning to return to either his former wife’s home or to be with his children from his former relationship. These text messages suggest that there were times when the mother felt that the father was using her for his own sexual gratification and was not respecting her or their relationship.
After the breakdown of the parties’ relationship in September 2011, there were two incidents where the mother alleges the father visited her uninvited and forced himself on her sexually.
The first of these incidences happened at Christmas in 2012 when it is the mother’s evidence that the father arrived at her Property M. home very late on Christmas night and insisted upon staying with her for two days and engaging in sexual intercourse against her will.
It is the mother’s evidence that the father again attended uninvited upon her home in Property M. in January 2012. The father, once again entered her home, refused to leave when she asked him to and again forced himself upon her sexually against her wishes.
It is the father’s evidence that he attended on the mother’s home late on Christmas Day in 2011 as a result of the mother contacting him on three occasions in a very upset state telling him that she was lonely and was sad as no one had given her any Christmas presents. It is his evidence that she readily admitted him to her home and that he stayed with her for two days at her request. It is his further evidence that during the two day stay, the mother, A, B and X happily spent time together and had a counter tea at the local hotel on the two evenings he was there. It is the father’s evidence that he and the mother’s intimacy was by mutual consent.
It’s the father’s evidence that he attended upon the mother’s home on 11 January 2012 as she had contacted him needing nappies for X and that he had taken them to her. It is his evidence that the mother was receptive of intimacy between them.
On 13 January 2012, the mother sent the father a text message as follows:
Don’t know if I am happy or sad. The thought of us finished. Guess I have to remain positive and commence healing process and move on. This is my view can mean solo or partnered.
As set out previously in this judgment, on 2 February 2012, the police made an application on the mother’s behalf to the Maryborough Magistrates Court for an intervention order. In the complaint and summons filed in support of that application, the police set out that the mother had told them that the father was not violent to her. There were no allegations in the complaint that the father had sexually abused her in December 2011 or January 2012.
It was submitted on behalf of the father that if the father had been sexually abusive of the mother on Christmas night 2011 and again on the 11 January 2012, then her 13 January 2012 text message and then subsequent report to the police would surely have made reference to the father’s unwanted sexual intimacy on those two recent occasions.
When this submission was put to the mother, it was her evidence that whilst the father was not physically aggressive towards her, he was insistent and that he refused to accept her repeated requests to him to not have sex with her and that he proceeded to be intimate with her despite her clear indications that this was not what she wanted.
The degree of financial dependence or interdependence or any arrangements for financial support between them
The parties in this matter were financially independent of each other.
In the mother’s affidavit’s sworn and filed 10 September 2012 at paragraph 36 she deposes as follows:
During our relationship the applicant declined to financially support me
It is the mother’s evidence that she was responsible for the payment of her own rent, utilities, food expenses, health insurance and the educational costs for her elder sons A and B.
Both parties agree that there was a very minimal intermingling of their finances save for one single occasion in 2007 when they invested in the (omitted) Markets for a period of three months.
It is the father’s evidence that one of the major issues between he and the mother was the mother’s reluctance to pursue paid employment. It is his evidence that he was adamant that he could not contemplate a more committed relationship with the mother if she was not in a position to financially contribute to the upkeep and maintenance of a combined family. It is his evidence that the mother was always reluctant to return to paid employment and that this was one of the reasons that the relationship floundered.
It is the mother’s evidence that the father insisted that she remain on Centrelink payments as a single parent even though she was concerned that the status of her relationship with the respondent may be in breach of the Centrelink rules and regulations. It is the mother’s evidence that the father assured that if there was any issue arising from her receipt of Centrelink payments that he would pay all shortfalls and refunds.
Tendered by way of evidence to the court was a letter written by the father to the mother in or about 2009 in which he indicated that he had spoken to Centrelink presenting a hypothetical scenario to them regarding living with a recipient of a single parent payment and that:
in the event that you get penalised I will pay all shortfalls and refunds.
It is the father’s evidence that it was the mother who insisted on remaining on Centrelink payments and it was she who at all times advised Centrelink that she was single.
After X was born, the father provided the mother with a credit card which by agreement she utilised to the amount of approximately $60.00 or $70.00 per week in payment of X’s food.
The father also paid the electricity bill of (omitted) after X’s birth as his contribution to the household expenses incurred by the mother in providing X with a home.
What is the ownership, use and acquisition of their property?
At no time did the parties jointly own any property.
During the course of the relationship there was a period when the mother rented a property at Property K from the respondent. This property was owned by him prior to the commencement of their relationship.
It is the mother’s evidence that during this period the father referred to the rental payments as being contributions to “their mortgage” and from this she concluded that the father was indicating to her that she was making a contribution to that property.
The father denies these comments and it is his evidence that the rental arrangement with the mother in relation to Property K was a bona fide commercial transaction.
The degree of mutual commitment to a shared life
The greatest proportion of the parties’ evidence in relation to whether they had been in a de facto relationship was directed to this factor.
It is the mother’s evidence that the parties were in an intense and closely committed relationship and that they had a mutual commitment to each other and to their ongoing relationship.
It is the mother’s evidence that the father would spend on average two to three nights a week in her home, that they socialised together as a couple, that they went on a family holiday for a weekend to (omitted) with her children and the father’s daughter E, that they attended numerous functions as a couple and that the father’s youngest children would regularly spend time with the father at her home.
In support of the mother’s evidence that the parties were in a committed relationship, the mother annexed to her trial affidavit filed 19 February 2013, post-it notes, letters and cards from the father to her which she deposes shows the strength and nature of their relationship and their shared commitment as a couple.
Further, the mother tendered to the Court during the giving of her viva voce evidence a transcript of many of the text messages received by her from the father which she also submits supports her evidence as to the nature of their relationship.
As those messages and notes run to many pages, it is not my intention to reproduce all of them in this judgment but rather to set out a sample of the messages to get a feeling for the tenor of the communication. These messages include:
(i)Undated post-it notes:
· Ms Sinclair thanks for everything. I feel so happy now. You are the most beautiful person I’ve ever met and I will never do you wrong. Sorry it took so long.
· Ms Sinclair don’t give up on us. It will work out in the end.
(ii)Undated Card:
Ms Sinclair I may have been stupid, selfish and slow at achieving the right outcome but you mean everything to me. This statement may seem strange to you but it’s true. I’ve never met anyone who has had such an impact on me. I will never stop loving you. I will never stop thinking about you and caring about you despite what’s happened my feelings are deep for you. You make me feel complete. I am sorry for my mistakes and yelling at you. Mr Hatcher, the sad old man.
(iii)Text Messages –
19 November 2009:
The only name I want to call you is “my wife.” more legal stuff today re divorce. Pray for me Ms Sinclair.
19 September 2008:
I am totally faithful to you cs. I want to see you all the time have t with you amap make you Bfast and spend my life with y, holiday with y Now that im healthy i can b more reliable I always have our interests first Ive always been a bit slow with other peoples kids but I am changing At least I want a baby unlike bent dick (omitted).
22 October 2010:
How's X? Missing him – I have feelings towards him and A and B as well. I may not show my emotions like you but they are there under my old skin. My promises are not empty and it is not a waste of time. I don’t spend time on four years on anything unless it will work in the end. I am a stayer not a layer. If you weren’t so ms right for me I would not have pursued you past three months. I have a lot to offer a woman esp if she is blind.
30 December 2008:
This anniverary (sic) was going to be a great day for us – t, movie & cake. Now it is total misery. i want to love you and please you so much. Bogan head has destroyed our relationship. F & E will always love you as a stepmum. i must learn to be less ‘me’ focused.’
10 November 2009:
Please help me Ms Sinclair –please don’t call me names – (omitted) was good cause I’d found my soulmate – (omitted) was good cause we didnt argue – i hate weekends without u – i wanted to hold u last night – I want to hold X.
30 December 2009:
Happy anniversity (sic) soul mate.
The father strongly rejects the mother’s claim that they were in a de facto relationship.
In paragraph 65 of the father’s affidavit filed 18 September 2013, he deposes as follows:
At various points in her affidavit material the Applicant has alleged that we had a committed relationship and that although I was not financially supporting her and we retained our own homes throughout, that what we had was somehow a de facto relationship. I say that the Applicant well understood, given that I had left my wife and four children, and then went through litigation relating to both property and children’s matters with Ms I, that I was not in a position to also become the provider for the Applicant and her own two children. My health issues were severe, seriously threatening my ability to meet financial obligations I already had to me former wife and four children. I was not emotionally capable or willing to make a commitment to a de facto relationship. The continuing conflict in our relationship only made me more cautious.
It is the father’s evidence that his and the mother’s relationship was volatile and highly dysfunctional. He describes their relationship as being “on” and “off” and that during the course of that relationship they broke up at least 50 to 70 times.
It was the father’s evidence that the mother became increasingly frustrated with his inability to commit to their relationship or to agree to the two of them living together. It is the father’s evidence that many of the text messages which the mother relies on as proof of his commitment to her were sent by him in response to text messages from her telling him that their relationship was over. It is his evidence that at that time he was still hoping that they might be able to make their relationship work.
In support of the father’s evidence of the volatility of their relationship, of their multiple and many break ups and the mother’s continuing allegations that he was not committed to their relationship, he too tendered to the Court a transcript of hundreds of text messages that were forwarded to him by the mother.
Again, given the huge volume of these messages, they will not be included in their totality in this judgement but rather a cross section of those text messages will be set out to give an indication of the tenor of those exchanges. Those text messages include:
30 January 2009:
All too convenient. It is Mr Hatcher’s way or the highway. Well, not any more. I’m the happiest on my own. You should not have slept with me last night, then run off with your own family, expect me to fit in with you now for a couple of hours. Just so you can check in with your other family a little later today. Stop throwing me the scraps. I’ve never wanted it and refuse to accept it. We had a conversation late last re txt and calls and a call received last morning. You had ample opportunity to mention going out early this morning. Poor communication, I need more planning in what is already a difficult family situation. However I choose now to be alone. I’ve reached my maximum point. I can’t be bothered trying any longer.
11 February 2009:
Tired of you telling me what I need. Your X is a massage baggage. The proof. She can’t keep her ugly nose out of someone else’s business. B- the-by, I’m happier when it is just me and the boys. Don’t need anyone else’s hassles. Especially one that continues to offer commitment in “in the future.” Another week has past.
10 August 2010:
Mmh. You think you can contact me because it is tue cheap night. Glad I’m over you. Recently found out just how you’ve been able to keep separate families. Oh yeah, by the way, it hurts to know you deleted the photo i sent you of X, me and you at (omitted). Who did you tell your other family you went there with, or did you say that you went on your own? Hey, tell bogan breath she’s won her bet. Your love child number two is being conceived. Due feb.
12 August 2010:
It’s because of the current arrangements I don’t invite you to anything. I am regarded as a single mum, may I remind you this is your current arrangement not mine. Nothing is ever changed with me re your comings and goings. I feel I am living a completely separate life to you accept when it suits you. I feel upset to persue (sic) a future with you.
26 August 2010:
Speaking of dad’s. How timely that you have your other brood last night, then have it fall into place to have them next Sat night. Just in time for father’s day (sic). Where does that leave X’s first father’s day (sic)? You have never placed importance on us. You should be standing up for us if you at all wanted a future. But no. i refuse to take second best. Dedicate your life to your other kids. I know i will meet someone someday that will offer a stable life, if not i really don’t mind being one my own raising my beautiful children alone. It’s quite soul soul soul searching. The dizziness (sic) has almost gone. Dr was right, the stress of having your instability around was the cause. Not having you around all week has given me time to relax. I wasn’t even fused (sic) when your mother walked straight passed X and I as she walked into your office on thur. If she put her hand out she would’ve touched X on the head. Can you now begin to see how wrong this has become? Please don’t say I’m exaggerating, it is what it is and now the paradigm shifts.
16 September 2010:
I’m past making a fuss. But I will never agree to a relationship when my needs are not met. Night time callers either… You have only ever wanted me to apart (sic) of a small portion of your life. I have accepted that I will be on my own from now on.
3 November 2010
Your often nasty and act selfishly. I’m planning my next way of earning an income and have the drive and feel very ambitious. Just not with you around it seems. Why do it and have you look in my life when you’ve treated me so badly many times over. I’m looking for someone I can trust with their commitment geared to me – you have never made an attempt to show me this.
24 January 2011
remember, we are not a new relationship. Two nights ago you tell me how deeply you are with me and love making love to me. I find this difficult to believe. We are more than 4 yrs strong. And a beautiful boy as well. You have destroyed any final hope of ever having a life together. I will never agree to your terms. Stay away. You have disappointed me greatly. I have been through hell waiting for you, and with your lies and bad manners. Cant see any sense waiting till the end of jan. Will have my profile on dating site asap. Remember this is BS and all your fault.
29 March 2011
You are the free spirit you have longed to be. I’m looking for a committed man, someone who is eager to become my husband. Please don’t think you can switch on the couple thing only when it suits you! Again. I waited for you. Again. You’re too busy. Again. You’re (sic) health restricts you. What more can i say, the same thing over and over. However. This time, i get on with my own business. I realize life is ok when it’s just me and the kids. You’re not offering the commitment i am looking for. I will not accept being slotted in when it suits you. It’s ok that you’re busy and its ok your lack of commitment. Understand it’s ok I will not wait for your future to begin. Mine has already started.
21 May 2011
Let it be, Mr Hatcher. I’m tired of all these reasons and excuses. Bottom line u don’t want me. I don’t see a team, i see you dealing with everything else in your life except us. C’main and m’day lovely times, however I want the a commitment u cannot offer. I know i will find a man that can offer all facets of his life and I won’t feel set aside. I want to be in a loving relationship, in a home together with my husband and out of this stinking rental with the commitment and support i desire. And i will give him my total energy, love and support. U and i want different things. U’ve told me before u u like to be a free spirit, i’m ok with that, go and be free. Amen
24 August 2011
DO NOT CALL HERE UNANNOUNCED. You have treated me so bad. I feel extremely used by you. I am living here and have done so for a very long time now, as a single parent. I will no longer be available for your convenience. X not being part of your life – well that’s the downside of parents not committing to each other. You have broken my heart. This may take months to mend, i can’t even look at you.
13 September 2011
Too late. You had your chance. Remember how you felt when you knew it wasn’t working with bogan princes –cleo–model–want-to -be? Your lack of commitment, objectionable manner and procrastinating has made me feel similar regret. I cannot live with, marry and devote my life with someone who has been so slack. Most of it is unnecessary and even with me begging you not to treat me this way, you continued. It’s come at a cost. The cost of you and me. I can’t see us committed. I see me running after kids and working. I see you working but having no income, seeing your kids and you coming and going when it suits you. There is no us time, rarely me time and don’t even consider an extended family……. I don’t want this. We want different things.
When cross examined as to these text messages, it’s the mother’s evidence that there were periods during their relationship where it was “difficult.” It is her evidence that at no time did she actually intend to finish her relationship with the father and that on each of the occasions where she has expressed her unhappiness with the father and their relationship, she and the father were able to work things out between them and at all times they remained committed to each other and to their relationship.
It was submitted on behalf of the father that the mother’s statements to Centrelink during the course of the parties’ relationship that she was single and that she could not live with him as he was not willing to commit, together with her statements to the Magistrate’s Court at Maryborough that the father made false promises about a more committed future, for example living together but always put them off, are a true reflection of the mother’s belief as to the status of her relationship with the father.
It is further argued on behalf of the father that the mother’s statements to Centrelink and the Magistrate Court raises real questions in relation to the mother’s credit in that she has either lied to Centrelink and the Magistrates Court or she is now lying to this Court in relation to their relationship.
In the matter of Sinclair & Whitaker [2013] Fam CAFC 129 the Full Court looked at the manner at which a trial Judge dealt with representations of the applicant that she was single and not in a de facto relationship made by her to the Australian Tax Office, the Chief Commissioner of State Revenue and to finance providers which contradicted her evidence to the Family Court was that she was had been in a de facto relationship.
Their Honours stated at paragraphs 65 and 66:
65. given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
66. The fact that such statements made to lenders or government authorities does not elevate them to a higher status. In Hayes & Markee [2008] NSWCA 10 McCole JA said at 99:
statements to a Government authority apparently inconsistent with a parties case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances…(reference omitted)
Whether the relationship is or was registered under a prescribed law of a State or Territory or as a prescribed kind of relationship
The parties had not registered their relationship under the prescribed laws of Victoria.
Care and support of children
The parties’ son X was born on (omitted) 2009.
It is the mother’s evidence that X’s conception was planned by the parties.
In paragraph 41.48 of the mother’s affidavit sworn on 19 February 2013, she deposes as follows:
X was a planned conception though it happened a bit earlier than we anticipated.
At the start of our relationship I told the father that I was still young enough to have another child and that was my wish.
I told him that I did not want to get in a lengthy relationship with someone who was unwilling to have another child.
The father replied to me that was “totally OK with me.”
The father was well aware when I ceased taking contraception.
I think it was at least three or four months after ceasing taking contraception that I fell pregnant.
The father remarked upon and seemed pleased with the degree of his fertility.
In support of her evidence that X’s conception was planned, the mother makes reference to three specific text messages sent to her by the father. These text messages are as follows:
19 September 2008
I’m totally faithful to you Ms Sinclair, I want to see you all the time have tea with you amap make you bfast and spend my life with y holiday with y Now that im healthy I can be more reliable I always have our interests first Ive always been a bit slow with other peoples kids but I am changing At least I want a baby unlike bent dick (omitted)
(bent dick (omitted) is a reference to the mother’s first husband who did not want to have children when he and the mother were married)
18 March 2009
No i received the messages when I was inside 143 consoling chl. I’ve got nothing to hide from you Ms Sinclair. I’m faithful cause I choose to be. I still love u heaps Ms Sinclair even more than (omitted) did and even more that your preg. With bb (omitted).
28 September 2009
Look Ms Sinclair I’ve been texting u for days with or without kids it makes no difference. Of course I want them with your kids. F esp would like to see them. My property settlement final proposal is at her solicitors. I am committed to an end result and are faithfull (sic) to this outcome.. This baby is a testament to our love for each other – not an accident. Its birth will bring great joy to my sick heart Ms Sinclair. I really want this baby so i can give someone all this love I have for you. Xox
In the father’s trial affidavit sworn 17 September 2013, under the heading ‘Circumstances surrounding X's conception’ the husband deposes as follows:
52. X’s conception was never planned…
53. The only discussion the applicant and I ever had about her going off the contraception pill was when she mentioned to me once in passing that she was “thinking of giving her body a rest off it” or words to that effect. At no point did the applicant inform me that she had in fact ceased taking contraception and nor was I aware of it.
54. There was certainly no discussion at the time along the lines of “lets have a child.” At that point I was in serious ill health. I weighed 53 kilograms down from my normal weight of 78 kilograms, and was extremely sick with Crohn’s disease. I would need to go to the toilet to pass bowel motions urgently on average 20 times per 24 hours. Many of these were during the night which meant I had very poor sleep over a two year period. I was in very poor health. I had no intentions of having another child at that point in time.
55. I was taking the medicine Methoblastin… The product contains Methotrexate… the side effects of this medication were terrible. My Methoblastin were accompanied by warnings that the drug could cause birth defects if either the patient or their partner became pregnant when the patient was taking it.
57. The Applicant refers back to discussions she alleged took place at the outset of our relationship. The only conversation I can recall on that front was the statement that the applicant made to me that she ‘would like to have six children.’ She would have been close to 40 years old at that time. I deny responding ‘totally fine by me.’ However, whatever discussions the Applicant alleges we had at the start of the relationship, so many things had gone badly wrong between us by January 2009 the month of conception that any notions of bringing a child into the world would clearly have been canvassed before proceeding. This never occurred.
59. The pregnancy was not planned by me, the cessation of contraception was not disclosed to me, and the conception itself could not have occurred at a worse time particularly given my severe illness and the medication I was taking for Crohn’s disease at that point. The Applicant did not ask me whether I was ready to have a child at that point in time, but if she had I would certainly have told her I was not.
It is the father’s evidence that when the mother advised him of her pregnancy he immediately contacted his treating gastroenterologist
Dr A to discuss the risk of abnormality to the foetus arising from his medication.
It is the mother’s evidence that the father consulted Dr A prior to her becoming pregnant to discuss with him any risk of abnormality in the event she were to become pregnant whilst the father was taking a drug containing methotrexate and that the father was advised there was no risk.
The husband tendered correspondence addressed to him dated 5 February 2009 from Dr A. That letter reads in part as follows:
Dear Mr Hatcher,
Further to our telephone conversation of the 3 February regarding Ms Sinclair’s pregnancy I reviewed the available literature regarding methotrexate therapy in a male and the risk of foetal abnormalities…
The safest advice is to follow the recommendation of the drug manufacturer and should you plan further children at this stage would be not to proceed with this pregnancy, to withdraw the methotrexate therapy for three months and then to try for a further pregnancy. Naturally as you have done well with methotrexate withdrawal of the drug would carry some risk of causing a deterioration in you Crohn’s disease.
I strongly recommend that you urgently consult an obstetrician as to how best to proceed in this situation.
A hand written note from the father addressed to the mother on the bottom of the letter from Dr A is in the following terms:
Ms Sinclair I spoke to (omitted) at (omitted) Hospital who advised that only the best sperm get through and that these sperm should be healthy. Mr Hatcher
In relation to the question as to whether X’s conception was planned, I prefer the evidence of the father.
The tenor of the text message communication between the parties towards the end of 2008 and the beginning of 2009 indicates that the parties relationship at that time was particularly volatile and supports the father’s evidence that their relationship was going through a particularly rocky period.
Further, both parties are in agreement that the father’s health at this time was particularly poor and that it was impacting on his day to day functioning.
The father’s ongoing, protracted and difficult family law proceedings with his former wife had not been resolved at this time.
Finally and most importantly, the medication that the father was taking to try and assist with his Crohn’s disease was strongly contra indicative of pregnancy and both parties were aware that it was not recommended by the father’s treating doctors and the manufacturers of the drug that a child be conceived whilst a party was taking that drug.
I accept the father’s evidence that he did not believe that it was sensible or appropriate to attempt to conceive in these circumstances.
Further, the mother’s evidence that the father had consulted his treating gastroenterologist as to the risk of foetal abnormality and being advised there was no risk prior to her becoming pregnant is clearly shown to be false in light of the contents of the correspondence tendered by the father from Dr A, his gastroenterologist.
Accordingly, on the question as to whether X’s conception was planned, I prefer the evidence of the father and find that his conception was not something that was planned by the parties.
Therefore the submissions made on behalf of the mother that one of the most powerful indicators that the parties were in a de facto relationship is that they had a planned child born of that relationship is not supported by the evidence.
The reputation and public aspects of the relationship
It is the mother’s evidence that in the early days of the relationship the parties socialised regularly with her friends.
In paragraph 41.42 of her trial affidavit sworn the 19 February 2013 she deposes as follows:
The difficulty was that my friends did not really like the father and they variously expressed the view to me that they did not really want him at their home.
Accordingly those arrangements gradually ceased.
The father denies eating weekly with the applicant and her children. It is his evidence this only occurred in those weeks when the parties were in what he termed the “on stage” of their relationship.
It is the mother’s evidence that the parties would eat out once a week with A and B together with whichever of the father’s children he had with him at the time. In addition it was the mother’s evidence that she and the father would take the parties’ respective children to various activities including the skate park, the beach and to the snow.
It is the father’s evidence that he only attended the residences of two of the mother’s friends early in their relationship and he was not otherwise invited to join the mother when she went out socially, particularly in relation to events associated with A and B’s school.
It is the mother’s evidence that the father joined her and her children on camping holidays to (omitted), (omitted) and (omitted).
It is the father’s evidence that he only once spent a single overnight with the mother and her children when they went camping and that was in (omitted).
It is the mother’s evidence that the parties had weekends away including a trip to (omitted) and a trip to (omitted) with the children.
It is the father’s evidence that those two trips are the sum total of the time that he and the mother had away together and that one trip was for one night and the other trip was for two nights only.
It is the mother’s evidence that she attended at least two of the father’s Christmas work functions as well as being invited to a friend of the father’s 50th Birthday and the father’s nephew’s wedding.
The father agrees that the mother did attend two work functions and had been invited to his friend’s 50th Birthday as well as his nephew’s wedding. It is the father’s evidence that the mother did not attend either the birthday party or his nephew’s wedding as the parties were arguing at the time that those events took place.
In support of the mother’s evidence of the social nature of their relationship, she provided the Court with a number of photographs which shows she and the father and various of their children happily interacting.
The father does not dispute there were happy times in his relationship with the mother in the five years that they were together. It is his submission that in any relationship there will be outings and happy times where photographs are taken but this does not of itself prove that the relationship had developed to that of a de facto relationship.
Conclusion
In his closing submissions, the father’s Counsel stated as follows:
The relationship between Ms Sinclair and Mr Hatcher began as an affair, became a monogamous romance, lurched unexpectedly into pregnancy, failed to graduate to a de facto relationship, faulted, fumbled and ended badly. The fact that the relationship never progressed to the kind of relationship contemplated by the Act, is exactly why the applicant put an end to it.
I agree with this description by the father’s Counsel of the relationship between the mother and the father.
Whilst I have no doubt that the mother and the father did love each other and that they hoped their relationship would evolve into something lasting and enduring, this did not occur.
The evidence of the father in relation to their “on again, off again” relationship, the many, many break ups and the mother’s distress and frustration at the father’s failure to properly commit to their relationship and join her in making it something more than it was is most persuasive.
I accept that the mother genuinely wanted the parties’ relationship to be more than it was and that the parties had a commitment to trying to make their relationship develop. This is not sufficient for this Court to find that the parties were in a de facto relationship.
The statements by the mother to Centrelink during the course of the relationship that she was single and that she was not in a relationship with the father of her newly born child X because he was not prepared to commit is, I believe, a statement of the mother’s genuine belief as to the status of their relationship at the time that she was making those statements.
Similarly, shortly after the parties’ relationship had broken down, her statement to the police that the father had been emotionally abusive of her as was evidenced by his failure to commit to their relationship and live with her despite his promises to do so, was also indicative of the mother’s understanding of the relationship she had had with the father.
Her evidence before this Court that she believed the parties to have been in a de facto relationship is I believe, tinged by hind sight and is not reflective of how she viewed the relationship while it was current.
The other matters of relevance that inform the decision that the parties were not in a de facto relationship in accordance with the definition of the Court is that they did not live together on a genuine domestic basis.
At no time did the parties ever have a shared residence. Whilst the father was a regular visitor to the mother’s home, at no time did either of them consider it to be their common abode. Whilst the mother explained the absence of toiletries, toothbrush and clothing on the father’s poor hygiene habits, I do not accept this explanation but rather see it as indicative of the complete lack of any merging of their residences.
I also accept that the parties performed minimal domestic chores for each other.
It is also apparent that the parties did not have any degree of financial interdependence and in fact this was a source of ongoing tension and conflict between the parties.
Further, there was no intermingling of the parties’ finances and at no time did they have any joint property.
Whilst it was publicly known that the parties were in a relationship, I am satisfied that the general public perception of this relationship was of “boyfriend and girlfriend” rather than it being viewed or presented by them as a long term committed de facto relationship.
Neither party advised their family or friends that they were living together or that they had any plans to do so in the future.
On the mother’s own evidence other than in the very early stages of their relationship, she did not generally socialise with the father amongst her own family and friends and to a large extent within her own personal support group presented as a single parent.
When the mother was questioned as to why she had not called any evidence from people she had named in her affidavit as having socially interacted with herself and the father, it is her evidence that she had not realised she would need to do so. I don’t accept that evidence and am drawn to the possibility that that evidence was not called as it would not have supported the mother’s case.
As set out previously in this judgment, I am satisfied that X’s conception was not planned by the parties jointly, albeit once the pregnancy was confirmed, the father joyfully embraced the arrival of his youngest son.
This finding that the pregnancy was not jointly planned by the parties is supported by the text message that the mother argues supports her view that the pregnancy was something that the parties planned together. By this I make particular reference to the text message of 29 September 2009 sent by the father shortly prior to X’s birth. In that text message the father says as follows:
This baby is a testament to our love for each other – not an accident.
The question that this message raises in my mind is why would the father have found it necessary to try and disabuse the mother of the notion that the baby was “an accident” if X’s conception was something that the parties had jointly planned.
Accordingly in all these circumstances, the mother has not discharged her obligation to satisfy this court on the balance of probabilities that the parties were in a de facto relationship as defined by the Act and her application for a declaration pursuant to section 90RD is dismissed.
Parenting Matters
This matter commenced by way of the father’s application for parenting orders relating to the parties’ young son X.
At the conclusion of the hearing of this matter, Counsel for the father provided the Court with the Minute of Final Parenting Orders sought by the father. Whilst detailed they will be set out in this judgment. They are as follows:
1. That the Applicant’s s90RD Application be dismissed.
2. That the parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2009 .
3. That the child live with the Applicant.
4. That the child spend time with the Respondent as follows:
(a) From 1.45pm until 3.45pm on Sunday [the first Sunday following the pronouncement of Court Orders] and that changeovers occur at (omitted) Contact Centre and a member of the (omitted) staff shall accompany the Respondent and child on an outing from (omitted) for the first hour of such time;
(b) From 1.45pm until 3.45pm on Sunday the following weekend and changeover shall occur at (omitted) Contact Centre;
(c) From 12 noon until 4.00pm on Sunday the following four weekends with changeover to occur at (omitted) in accordance with paragraph 5 herein;
(d) Thereafter each alternate weekend from 5.00pm on Saturday until 6.00pm on Sunday, and on the first four such occasions the child shall stay overnight at the home of Ms P;
(e) Commencing 5 July 2014 and fortnightly thereafter from 4.00pm on Friday until 6.00pm on Sunday;
(f) On 26 December 2013 from 10.00am until 6.00pm with changeover at (omitted) unless otherwise agreed;
(g) On the weekend of the Father’s Day from 4.00pm on Friday until 6.00pm on Sunday;
(h) That time be suspended on the weekend of Mother Day;
(i) Upon the child attaining five years of age ((omitted)2014):
(i) for a period of five days in each of the school term holiday periods at times to be agreed and in default of agreement from 4.00pm on the first Saturday until 4.00pm on the first Saturday until 4.00pm on the following Thursday;
(ii) for 2 periods of five days during the Christmas school holidays at times to be agreed and in default of agreement then from 4.00pm on 25 December 2014 until 4.00pm on 30 December 2014, and from 4.00pm on 21 January 2015 until 4.00pm on 28 January 2015;
(j) Upon the child attaining six years of age ((omitted) 2015):
(i) for one half of each school term holidays at times to be agreed and in default of agreement from 4.00pm on the first Saturday until 4.00pm on the second Saturday;
(ii) for a period of two weeks during the Christmas school holiday period at times to be agreed and in default of agreement then from 4.00pm on 25 December until 4.00pm on 8 January;
(k) Telephone and Skype communication each Wednesday between 4.30pm and 5.30pm. To give effect to this order:
(i) The Applicant shall do all things necessary to install and facilitate Skype communication between the Applicant and the Respondent;
(ii) The Respondent shall place the telephone and/or Skype call and the Applicant shall facilitate and encourage the child to participate in such communication with the Respondent;
(l) Email communication upon the child attaining seven years of age;
(m) For such further or other periods as may be mutually agreed.
5. That from the commencement of paragraph 4(c) and all subsequent periods of time spent changeover shall occur in the foyer of (omitted) Police Station or such other venue within (omitted) as Mr J of the (omitted) Parish may nominate in writing and changeover shall be supervised by Mr J or his written nominee provided that the nominee has a working with Children certificate.
6. That each party be and is hereby authorised to obtain:
(a) From any kindergarten or school the child attends, copies of school reports, newsletters, photograph opportunities and other such information ordinarily provided to parents;
(b) From any medical practitioner the child attends, information concerning the child’s health and each party shall keep the other informed of the name and contact details of any health [professional whom the child consults.
7. That each party is at liberty to attend at the child’s kindergarten and school for the purposes of any function or activity to which parents are invited including but not limited to the Father’s Day function.
8. That each party keep the other informed of the address at which the child ordinarily lives or spends time with that party including mobile telephone number and email addresses and notify the other party within 72 hours of any change to such information.
9. That each party notify the other party by SMS message within an hour in the event that the child suffers injury requiring hospital attendance, and as soon as practicable if the child is prescribed medication.
10. That the Applicant undertake individual counselling with a psychologist nominated by the Family Report Writer in order to help the Applicant adjust to the obligations imposed upon her by these orders and the Applicant shall provide to the counsellor nominated by Mr O a copy of this Order, the psychiatric report of Dr T dated 30 April 2013, the Family Reports of Mr O dated 20 February 2013 and 26 August 2013, the three (omitted) reports of Ms C, such counselling to continue on a regular basis until the counsellor advises the Applicant in writing that the purpose of the counselling has been achieved.
11. That the Applicant forthwith enrol in and complete a 12-week Post-Separation Parenting Program and an Anger Management program approved by Lifeworks Australia and provide Certificates of Completion to the Respondent.
12. That the Respondent provide a copy of these orders to Ms P as soon as practicable AND IT IS REQUESTED that she facilitate paragraph 4(d) herein.
The mother’s proposal for final parenting orders are contained in her outline of case and are as follows:
1. That the father’s Application filed 14 August 2012 be dismissed.
2. That the mother have the sole parental responsibility for the child of the relationship:-
X born (omitted) 2009 (“the child”)
3. That the child live with the mother.
4. That the father spend time with the child:-
(a) (i) On alternate Sundays commencing 29 September 2013 for 2 hours (12noon until 2pm), and then
(ii) On alternate Sundays commencing 27 October 2013 for 4 hours (12noon to 4pm), and then
(iii) On alternate Sundays commencing 24 November 2013 for 6 hours (10am to 4pm),
(b) Such contact shall occur in the (omitted) district, and
(c)The father’s time with the child shall be supervised by Ms P (or such other supervisor as is agreed between the parties).
(d)(i) From 10am until 4pm each Boxing Day, and
(ii) On each Father’s Day from 10am until 4pm
(iii) On X’s birthday from 4pm until 6pm when X’s birthday falls on a non school day, and if X’s birthday falls on a school day the father shall telephone X at 6pm and shall have an uninterrupted telephone conversation with X for up to 30 minutes, and
The father’s abovementioned time with the child shall be supervised by Ms P (or such other supervisor as is agreed between the parties) and such supervision shall continue until the child commences fulltime schooling.
(e) Commencing when the child starts fulltime school:-
(i) From 4pm Saturday until 4pm Sunday in alternate weekends.
(f) Commencing when the child attains the age of 8 years:-
(i) From 4pm on the 2nd Saturday of the school term holidays until 4pm on the following Wednesday, and
(ii) From 4pm on 26 December in each year until 4pm on Wednesday 29 December, and
(iii) From 4pm on 9th January until 4pm on the 12th January in each year.
5. That all changeovers for the child shall take place in the foyer of the (omitted) Police Station.
6. In the event that the father is more than 15 minutes late to collect the child then contact shall be suspended on that occasion.
7.The arrangements in paragraphs 4(a) & 4(d) herein shall be suspended:-
(i) When the father is spending extended periods of time with the child during school term and Christmas holidays, and
(ii) On Mother’s Day, and
(iii) On the mother’s birthday, and
(iv) On 26 March and 16 December in each year, and
(v) On the child X's birthday (save as set out elsewhere herein)
8. That whilst the father is spending time with the child:-
(i) He shall be in substantial attendance and shall supervise the child at all times.
9. That the father be restrained by injunction:-
(i) From allowing the child to come into contact with:-
(a) Ms M, and
(b) D, and
(c) Ms I (including attending at any residence where Ms I works or lives from time to time)
(ii) From allowing the child to be placed into the care of any person other than the father.
10. Prior to the father commencing overnight time with the child:-
(i) He shall provide to the mother a copy of a certificate of occupancy for the real property at Property C
11. In the event of the child requiring medical or dental treatment during the time the child is with the father the father shall immediately notify the mother of such treatment and provide full particulars to her.
12. The father shall provide a written notice to the mother (by way of text message) or any arrangements proposed by the father for the child which involve the child staying at a location other than the father's home whilst in the father's care.
13. The father shall provide appropriate clothing for X during the time whilst the child is with the father.
14. The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said child and from permitting any other person so to do.
15. That whichever party receives a copy of the child’s school report/s shall forthwith provide a copy/copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party.
16. That each party shall forthwith notify the other of any medical or other emergency affecting the child.
In all these circumstances, I am of the view that if X were to spend unsupervised time with the father, X would not be placed at an unacceptable risk of harm.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn were applicable in this matter.
Section 60CC(3)(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.
Given that X is only four, his views have not been sought.
Section 60CC(3)(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).
As already set out in this judgment, X’s primary attachment is with his mother.
X’s relationship with his father is developing but has been limited by the relatively small amount of time X has been able to spend with his father in the last two years.
The mother has two older sons A and B and I have no doubt that X is a much loved little brother in his mother’s household.
The father has four older children from his first marriage. Whilst X spent some time with the father’s two youngest children during the parties relationship, X has not had any opportunity to develop his relationship with his siblings on his father’s side.
The mother has four older brothers as well as her parents who live in (omitted). I accept the mother’s evidence that X is a much loved member of his larger maternal family.
The father is also part of a large family with many siblings, nieces, nephews and great nieces and nephews. During the hearing, the father produced a photograph taken at his father’s 80th birthday where the large external paternal family are holding up signs saying hello X.
It is to be hoped that with the passage of time that X will have the opportunity to develop a relationship with his extended paternal family that is similar to the one he now has with his extended maternal family.
Section 60CC(3)(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 (iii) to communicate with the child.
This is not a matter that is about the father failing to participate in the matters set out in this section but rather it is a case where the father has not been afforded the opportunity to do so by the mother.
The real concern in this matter is the mother’s clear reluctance to allow X to have a relationship with his father or to allow the father to be actively involved in X’s life in any way.
Section 60CC(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.
The father has met all his child support commitments since X’s birth.
It is the father’s evidence, which I accept, that he has paid over and above the amount that he has been assessed to pay for X’s care by the Child Support Agency, albeit given his relatively low income this does not necessarily equate to a substantial amount.
During the parties’ relationship, the father provided the mother with a credit card to be utilised to purchase food on X’s behalf as well as paying the electricity bill for the mother’s home during this period.
It is the father’s evidence that he will continue to support X and I accept his evidence in this regard.
The mother as X’s primary carer has always met her obligations for his care.
Section 60CC(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.
Neither party is seeking that there be an alteration that X remain in his mother’s primary care.
Further, I am satisfied that the father’s proposed orders or orders similar thereto will not result in a significant alteration in X’s circumstances such that he would be separated from his parents or other important persons.
Section 60CC(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
The parties live approximately three hours apart from each other with the father in Melbourne and the mother in (omitted)..
This creates some real practical difficulties in X being able to spend time with the father other than on an alternate weekend basis.
The parties’ highly conflicted relationship and the mother’s anxiety and fears about interacting with the father also impinge on them being able to put in place cooperative arrangements in relation to changeover when X is spending time with the father.
Whilst the father has put forward a proposal that the changeover take place at (omitted) facilitated through members of the local (omitted) parish, I am of the view that this is not an appropriate arrangement in the circumstances of this matter.
With the best of intentions, the people who the father proposes facilitate changeover in (omitted) will not have the requisite training or facilities to facilitate changeover. This would be particularly so if X became resistant to moving between his parents or where there were conflict between the parties themselves.
The mother’s primary position for changeover is that the father collect and return X to the (omitted) Police Station once he starts spending time with his father in Melbourne.
I am of the view that this is neither a fair or practical arrangement and an alternative solution will have to be found.
The mother has the primary care of her elder sons A and B who are 12 and 10 and this also complicates matters in the circumstances where it is her evidence that they have sporting commitments in (omitted) on the weekend and that they will have to travel with her in order to affect changeover out of (omitted)..
The mother was questioned as to why A and B would not be able to stay at a friend’s house while the mother was transporting X to spend time with his father. Her evidence that there was no one available to assist in this regard was somewhat concerning on a number of levels. Firstly it points to the concerns that the mother is overly protective of and somewhat insular when it comes to the care of her children. Further it flies in the face of the mother’s evidence to Mr O and Dr T that she has a large friendship and support base in (omitted).. If the mother has such a large support base, one must question why her support base would not be able to look after B and A for an afternoon if the mother had to drive down to Melbourne to drop X off, unless the mother is either not prepared to have anyone else take care of B and A or she does not have that support base.
Section 60CC(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.
Whilst the mother raises concerns about the father’s capacity to meet X’s physical and emotional needs, it is quite clear from the previous findings made in this judgment that I am satisfied that he is able to do this.
The mother is a loving and caring parent though there has to be concerns raised that she is perhaps too overprotective when it comes to her sons.
It is the mother’s evidence that her former partner Ms P has never had overnight time with B and A. It is noted that this may relate to some personal issues of Ms P including concerns about issues she may have with alcohol.
That the mother has no one in (omitted) to look after a 12 and 10 year old for a few hours is very concerning.
It would appear that the only person A, B and X have spent overnight time with other than the mother is Ms P. As the boys mature and develop their independence, they may start to rebel against the mother’s possessiveness and the limitations she may place on their need to interact more with peers of their own age.
There is also concern about the mother’s inability to acknowledge that there is any benefit in X having a meaningful relationship with the father.
Dr T flags the possibility of the mother being unable to put her own views of Mr Hatcher to one side and that she is projecting her concerns, fears and anger on to X, to X’s detriment.
Both Dr T and Mr O strongly recommend that the mother immediately commence therapeutic counselling that is specifically directed towards helping her address her anxieties relating to X spending time with his father and to assist her to address the cause of those fears so she is better able to support X and the development of his relationship with his father.
Section 60CC(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
This subsection is not relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this Part will have on that right;
This subsection is not relevant.
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother is a caring, loving and devoted parent and I am satisfied that she places the needs of her children at the forefront of her day to day living.
I am also satisfied that the father is a loving and caring parent and that he genuinely wants to develop a meaningful relationship with his son and to be actively involved with him and in his life in the future.
The mother holds the belief that the father is only pursuing parenting orders in relation to X in order to harass and scare her. I do not accept this is the father’s motivation in seeking orders to spend time with X. I accept the father’s evidence that he understands that his relationship with the mother is over and that he is pursuing this matter because he wants the opportunity to have a relationship with his youngest son.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The mother has a current intervention order against the father which will last until July 2015.
The basis of that intervention order would appear to be that he was harassing her by way of phone and email.
It is the father’s evidence that his only contact with the mother since January 2012 has been in relation to trying to spend time with X and that his messages were not in any way meant to be threatening or to harass or frighten the mother.
Section 60CC(3)(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
In most matters, the Court always hopes that its orders will see the cessation of litigation between the parties.
In this matter there has to be a real concern that whatever orders are made by the Court in relation to X’s time with the father, the mother is going to have difficulty accepting them unless they are in the terms proposed by her and that there is the real potential that she will find it difficult to comply with these orders such that this matter will have to return to the Court.
The mother can only be encouraged to properly engage in the recommended counselling to assist her to deal with her anxieties and allow X the opportunity to have a meaningful relationship with the father.
The mother will have a positive obligation to comply with the court’s orders and a failure by the mother to comply with its orders will leave the Court with no other option than to enforce these orders to the full extent of the law.
The assessment of Dr T and Mr O is that the father has a somewhat quirky personality and he is not always sensitive to the vulnerabilities of others.
It is apparent that the father has an unusual sense of humour and that there are times where his comments and behaviours can be somewhat confronting and challenging to other people.
Whilst the father believes that the mother is being deliberately obstructionist and is hell bent on preventing him having a relationship with X, he needs to understand that she finds many of his comments and behaviours challenging and that her anxiety about X spending time with him is genuine.
Accordingly, it is incumbent upon the father to ensure that he fully complies with the current intervention order. Further, its will be very important that the father complies with all orders of this Court and that his focus is on the development of his relationship with X. The father must endeavour to not intentionally or unintentionally antagonise the mother as to do so will only create difficulties for himself and more importantly, X.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
A major issue between the parties is how changeover is to take place once X starts spending time with the father in Melbourne.
As noted, it is the father’s proposal that changeover take place in (omitted) assisted by members of the parish of Mr J, the local (omitted) priest.
My opposition to this proposal has already been clearly set out in this judgment. That opposition is supported by Mr O.
Whilst the father’s proposal for changeover at (omitted), the mid way point between the parties’ homes is “fair,” it is apparent that it will not work for these parties. More importantly, it will not work for X and I am not attracted to this proposal in any way.
The mother’s primary position is that all changeovers take place at the (omitted) Police Station.
This places an overwhelming burden on the father to do all the travel for the time he spends with X. The father has been travelling to and from (omitted) for well over 12 months to spend time with X for two hours a fortnight. It is not tenable for the father to undertake the totality of the travelling responsibilities in the long term.
The mother’s “fall–back” position is that the father collect X from (omitted) at the commencement of the father’s time with X and she collects X from Melbourne at the conclusion of that time.
The difficulty with the mother’s proposal is that when X initially spends time with the father in Melbourne, it is to be from Saturday afternoon to Sunday afternoon.
The father’s busiest work day is Saturday and he often does not finish work in Melbourne and surrounds until 3.45pm on Saturday afternoon. It is therefore physically impossible for him to travel to (omitted) to collect X between 4.00pm and 5.00pm on Saturday afternoon.
The mother argues that her elder sons B and A play sport on Saturday and therefore it will be very difficult for her to travel down to Melbourne with X as she would need to bring B and A with her on this trip.
As noted earlier in this judgment, given A and B’s ages, I am a little bemused as to why they would not be able to play their sport and then go back to a friend’s house until the mother came home having dropped X to Melbourne, despite the mother’s evidence that this is not an arrangement that she can put into place.
Mr O spoke of the symbolic message given to X if his mother delivers him to his father for time with him. Given the mother’s reluctance to support X’s relationship with the father, that symbolism will be very important.
Accordingly, when X is spending time with his father from Saturday afternoon to Sunday afternoon in Melbourne, the mother shall deliver X to the father at the home of Ms P on Saturday afternoon where the father will collect X. The father will return X to the mother at (omitted) Police Station on Sunday afternoon.
When X starts to spend alternate weekends with his father from Friday to Sunday, the father shall collect X from (omitted) on Friday afternoon and the mother shall collect X from Ms P’s home on Sunday afternoon.
Parental Responsibility
As set out earlier in this judgment, the mother is seeking orders that she have sole parental responsibility for X. The father is seeking orders that the parties have equal shared parental responsibility for X.
The father is seeking orders for equal shared parental responsibility for X as he wishes to have an involvement in the major decisions relating to X.
The father is agreeable to orders that limit parental communication to email and that text messages only be used in the event that either party is running late or there is an urgent health emergency affecting X.
The mother argues that an order should be made that she have sole parental responsibility for X.
It is the mother’s evidence that she is X’s primary carer and is well placed to make the important decisions in relation to X’s care.
Further, it is the mother’s evidence that she is fearful of the father and holds a genuine concern that he will deliberately manipulate any order for equal shared responsibility to justify a resumption of intimidation and harassment of her.
Further, the mother is concerned about the parties’ capacity to reach any agreement in relation to X and that this will only lead to further conflict and an inability for the important decisions to be made in relation to X with any degree of common sense or ease.
It is Mr O’s evidence that the decisions the parties would need to make jointly involve where X will go to school, any question of overseas travel and major medical decisions. Given that both parties are (religion omitted), Mr O suggests there is unlikely to be disagreement if there is a suggestion made by the mother that X be educated in the (religion omitted) school system. Similarly one wonders why there would be any issues about X having the opportunity to travel.
In Mr O’s evidence, he supports an order for equal shared parental responsibility. It is his evidence that it will be important for X that as he grows up he is aware that both parents are committed to him, that decisions are being made for him jointly by both his parents and that both of his parents love, care and provide for him.
Whilst acknowledging the mother’s concerns as to the father using the orders sought by him to harass her, I am of the view that the father understands that an order for equal shared parental responsibility does not afford him the opportunity to communicate with the mother save in relation to the relatively rare occasions a decision is needed in relation to X’s education, travel or health.
I am satisfied in all the circumstances that it is in X’s best interests that an order be made for the parties to have equal shared parental responsibility.
Conclusion
It is quite apparent from the evidence of the mother that she is extremely reluctant for X to spend time with the father other than on a very limited and supervised basis.
Whilst I accept that her concerns in relation to the father and his parenting capacity are genuinely held by her, it is my finding that they are without basis.
X is slowly developing a positive relationship with his father and he is entitled to have an ongoing meaningful relationship with him.
X has been spending limited supervised time with his father for over 15 months and it is very apparent that it is long overdue for that time to move to longer periods and that the need for supervision is well passed.
It is the recommendation of the report writer that X’s time should quickly transition from supervised time to unsupervised time.
It is also the very strong recommendation of the report writer Mr O that if the Court is satisfied that X is not at risk in spending unsupervised time with his father, then the time X spends with the father should quickly transition to overnight time.
The father has put forward a proposal that X immediately start to spend unsupervised time with the father and that initially changeover for this time take place at (omitted). It is the father’s proposal that he initially have six weeks of unsupervised time with X in or around the (omitted) region and then that time move to alternate overnight time in Melbourne, initially from Saturday to Sunday and within six months, to alternate weekends from Friday to Sunday.
There is a practical difficulty in relation to the father spending alternate weekends with X from Friday to Sunday being the father’s work commitments each Saturday.
The mother expresses concern about orders being made for X to spend time with his father which would involve X spending several hours of that time with people who are not well known to him. She questions the efficacy of expanding X’s time with the father if X is not going to be predominantly in the father’s care.
These concerns of the mother are not without some merit.
However, X is not only entitled to develop a relationship with his father, he is entitled to develop a relationship with his extended paternal family.
The father has put forward a number of family members who are willing to look after X as the father heads in and out to his work commitments each Saturday. I am of the view that those arrangements will be appropriate as long as the introduction of the alternate weekend Friday to Sunday time takes place after a sufficiently long enough period of time that will enable X to have developed relationships with the people it is proposed will care for him.
One of those who has been proposed to care for X is the paternal grandmother. Given her antipathy to the mother and the mother’s somewhat understandable concerns about the paternal grandmother’s attitude to X, I don’t believe that the paternal grandmother should be a primary carer for X in the absence of the father.
Proposals were put forward by both parties that Ms P be used to facilitate X’s transition from supervised time to unsupervised time with the father. Given that it is my intention to make orders for the mother to drop X to Ms P in order for changeover in Melbourne, I don’t believe that it is necessary to otherwise involve Ms P in this process.
I note too that Ms P may form part of the group of people who look after X on a Saturday when the father is working as it seems she and the father have a reasonable relationship. The father views her very positively, she is someone who X has spent considerable time with and she has expressed a willingness to assist X in any way she can.
In relation to the question of telephone and Skype communication, the mother is strongly opposed to that communication taking place.
In circumstances where X is only 4 ½ years old, he is not going to be the best talker on the telephone at this time. However, I am of the view that X should be able to at least have a chat with the father once a week. This view is supported by Mr O’s evidence that when a child has a 10 day gap between the times he sees a parent, it is in the child’s best interests that he have communication with that parent during the lengthy period be does not see that parent.
Whilst X would easily manage Skype communication with the father, I am of the view that the “electronic” physical intrusion of the father into the mother’s home would be something that would be overwhelming for the mother. In those circumstances, I will not be making orders that there be Skype communication between X and his father.
The father is also seeking orders in relation to be able to spend some school holiday time with X.
The mother was open to orders being made for X to have 5 days with the father during the school holiday time when X turns eight.
The father is seeking that holiday time between himself and X commence when X starts school.
Mr O is of the view that once X starts spending Friday to Sunday with his father, there would be no reason that X would not be able to manage an extra night with his father during school holidays.
It is the father’s evidence that other than during the long summer vacation and in particular at or around the Christmas period, he is required to work in order to maintain his business.
In these circumstances, orders for X to spend a week with the father in the term holidays would be inappropriate as the father would not be available to care for X.
Accordingly orders will be made that X spend three days with the father during the term holidays commencing the first term holidays in 2015.
It is apparent however that the father is able to take some holiday time around the Christmas period. Therefore in relation to the long summer vacation, orders will be made that X spend one block period of time with the father, starting with three days on the 2014/2015 and gradually increasing each year so that by the long summer vacation 2018/2019, X will spend a block period of 10 days with the father. This will afford X, his father and the paternal family the opportunity to take a proper holiday together.
Orders will also be made that when X starts to spend a block period of a week or more with the father in the long summer vacation, the mother shall be able to nominate an alternate weekend in the long summer vacation that X not spend with the father so that she too can take a longer vacation with X.
It is also appropriate that orders should be made in relation to special days that include Christmas, Father’s Day, the Father’s Birthday and for an opportunity for telephone communication on X’s birthday if he is not otherwise travelling to Melbourne to see his father pursuant to the Court’s orders.
The most important order that will be made by the Court is that which will require the mother to attend therapeutic counselling to assist her in managing her anxiety during the process of the transition of X moving from supervised to overnight unsupervised time with his father.
It is the mother’s suggestion that she continue to see her current counsellor in (omitted) for this counselling.
The difficulty with an order in those terms is that the Court cannot be satisfied that the mother’s current counsellor has the requisite skills to specifically assist the mother to address this anxiety.
Mr O was able to recommend two (omitted) based counsellors that he believes are suitably qualified to assist the mother.
It is my intention to make an order that requests Mr O to firstly consult with the mother’s current counsellor to discuss with her whether that counsellor believes she has the requisite qualifications to assist the mother and provide the mother with the necessary therapy to address the issues identified by Mr O and Dr T and as outlined in this judgment.
If Mr O forms the view that the mother’s current counsellor is capable of and is qualified to provide that counselling, then orders will be made that she continue to attend upon her counsellor and that her counsellor be provided with copies of Mr O’s family reports, the psychiatric assessment of Dr T as well as the component of this judgment that relates to parenting matters.
If Mr O and the mother’s current counsellor are of the view that the mother’s current counsellor is not best placed to provide the therapy that he, Dr T and the Court envisages, then orders will be made for the mother to attend upon a counsellor as recommended by a Mr O and that the above listed documents be provided to that counsellor.
From all reports, X is a delightful little boy who is much loved by both his mother and despite the mother’s reservations, by his father.
X is entitled to have a meaningful relationship with both of his parents and I am of the very strong view that it is in his best interests that he be afforded that opportunity. I am fully cognisant that this finding will provoke serious anxiety in the mother but I can only reinforce with her the importance of her supporting X in his relationship with his father and doing everything she needs to manage her anxieties to enable X the opportunity to have that relationship now and into the future.
I certify that the preceding four hundred and fifty-three (453) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 6 March 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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