Snowdon and Snowdon

FEDERAL CIRCUIT COURT OF AUSTRALIA

SNOWDON & SNOWDON

[2019] FCCA 588

Catchwords:
FAMILY – Parenting – allegations of family violence – where the mother is suspicious and untrusting of the father – where allegations of drug use are not substantiated – where there is high level conflict – where the mother in an unreliable witness – graduated time spent with father.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 60CC(3)

Applicant:

MR SNOWDON

Respondent:

MS SNOWDON

File Number:

DNC 258 of 2017

Judgment of:

Judge Young

Hearing dates:

30 & 31 January 2019

Date of Last Submission:

31 January 2019

Delivered at:

Darwin

Delivered on:

31 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Story

Solicitors for the Applicant:

Story & Associates

Counsel for the Respondent:

Mr Nottle

Solicitors for the Respondent:

Infinity Lawyers

ORDERS

That the parties share equal parental responsibility for [X] born … 2015 (“[X]”), and [Y], born … 2017 (“[Y]”), (collectively “the children”).
That the children live with the mother.
That from the date of these Orders until Sunday 26 May 2019:
(a)[X] spend time with the father on a four-week cycle as follows:
(i)In Week 1 – from 4:30pm on Friday to 5:00pm on Saturday;
(ii)In Week 2 - from 4:30pm on Friday to 5:00pm on Saturday;
(iii)In Week 3 – from 4:30pm on Tuesday to 9:00am on Wednesday;
(iv)In Week 4 - from 9:00am on Monday to 4:30pm on Tuesday.
(b)[Y] spend time with the father on a four-week cycle as follows:
(i)In Week 1 – from 9:00am to 5:00pm on Saturday;
(ii)In Week 2 - from 9:00am to 5:00pm on Saturday;
(iii)In Week 4 - from 9:00am to 4:30pm on Monday and from 9:00am to 4:30pm on Tuesday.
That from Monday 27 May 2019 to Sunday 15 September 2019:
(a)[X] spend time with the father on a four-week cycle as follows:
(i)In Week 1 – from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 5:00pm on Saturday;
(ii)In Week 2 – from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 5:00pm on Saturday;
(iii)In Week 3 - from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 9:00am on Saturday;
(iv)In Week 4 - from 9:00am on Monday to 4:30pm on Tuesday and 9:00am on Friday to 9:00am Saturday
(b)[Y] spend time with the father on a four-week cycle as follows:
(i)In Week 1 – from 4:30pm on Friday to 5:00pm on Saturday;
(ii)In Week 2 - from 4:30pm on Friday to 5:00pm on Saturday;
(iii)In Week 3 – from 4:30pm on Tuesday to 9:00am on Wednesday;
(iv)In Week 4 - from 9:00am on Monday to 4:30pm on Tuesday and 9:00am to 4:30pm on Friday.
That from Monday 16 September 2019 the children spend time with the father on a four-week cycle as follows:
(a)In Week 1 – from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 5:00pm on Saturday;
(b)In Week 2 – from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 5:00pm on Saturday;
(c)In Week 3 - from 4:30pm on Tuesday to 9:00am on Wednesday and 4:30pm on Friday to 9:00am on Saturday;
(d)In Week 4 - from 9:00am on Monday to 4:30pm on Tuesday and 9:00am on Friday to 9:00am on Saturday.
That prior to the children reaching school age the parties shall attend mediation to discuss the further progression of the father’s time.
That notwithstanding these Orders, the children spend time with the mother from 12:00pm until 5:00pm each Mother’s Day and with the father from 12:00pm until 5:00pm each Father’s Day at times when changeovers can be facilitated through Catholic Care unless otherwise agreed between the parties in writing.
That notwithstanding these Orders, if the mother’s birthday or the father’s birthday falls on a day when the children would otherwise be living with the other parent, the children spend time with the parent having the birthday for a period of at least three hours at a time when changeovers can be facilitated through Catholic Care to be agreed between the parents.
That notwithstanding these Orders, for the children’s birthdays each year the parent with whom the children are living make the children available to spend time with the other parent for a period of at least two hours at a time when changeovers can be facilitated through Catholic Care to be agreed between the parents.
That notwithstanding these Orders, the children spend time:
(a)from 9:00am to 5:00pm Christmas Day in odd years and from 4:30pm Christmas Eve to 9:00am Christmas Day in even years with the father; and
(b)from 9:00am to 5:00pm Christmas Day in even years and from 4:30pm Christmas Eve to 9:00am Christmas Day in odd years with the mother.
That for the purposes of changeover, all changeovers between the father and the mother shall occur at Catholic Care.
That following the mother and paternal grandmother completing 4 face to face changeovers at Catholic Care, that 50% of the changeovers shall occur at the McDonalds on … Road between the mother and the paternal grandmother and the 50% visits shall be agreed between the parties in writing 48 hours prior to the changeover occurring and for the purpose of these changeovers the paternal grandmother shall attend without the father and shall not discuss any parenting arrangement with the mother.
That until both children reach school age the mother be permitted to take the children to Country A for a period of up to four weeks and the mother shall provide to the father with a travel itinerary 30 days prior to the proposed departure.
That within ninety (90) days, the parties will do all things and sign all documents necessary to obtain a passport for the children and the parties will ensure that the children’s passport is renewed prior to its expiry.
That should either party refuse to sign a passport application this order shall serve as an authority of that party, for the purpose of a passport application, and further thereafter the mother is to retain possession of the passports while the children are living with them.
That each party shall:
(a)Keep the other informed at all times of their contact telephone number and shall notify the other in respect to any change in writing within 2 days;
(b)Keep the other informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise such treating practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)Inform the other parent within 48 hours of any significant health issue or significant illness suffered by the children that require medical treatment; and
(d)Inform the other parent as soon as reasonably practicable of any medical emergency in which the children are involved and require treatment with such information to include the name and address of any medical practitioner who provides diagnosis or treatment to the children, and the parent shall authorise such practitioner to speak directly with the other parent.
That neither parent is to use physical discipline on the children or allow someone else to do so.
The parents be restrained and an injunction issue restraining the parents from:
(a)Questioning the children about the other parent’s household;
(b)Discussing inappropriate adult issues, including the family law proceedings, between the parents to the children or where the children can hear, nor allow another person to do so;
(c)Denigrating the other parent or members of the other parents’ family to the children or in the children’s hearing or presence, or allowing anybody else to do so;
(d)Being under the influence of excessive alcohol or illicit drugs while the children is in their respective care and allowing the children to remain in the presence of any other person who is consuming, or under the influence of, excessive alcohol or illicit drugs;
(e)Exposing the children to abuse or family violence (including verbal, psychological and emotional abuse), and that each party will take all measures necessary to remove the children from an incident of family violence should such circumstances arise.
That the parties shall communicate by telephone in relation to matters of an urgent nature only and otherwise communicate by text message or email about all other parenting matters.
That the parties shall use the communication book to communicate about the children including but not limited to their bedtimes, use of technology, nutrition, meal times and medical issues.
That the parties are to refrain from using the communication book for anything other than communication about the children’s care.
Upon provision of these Orders to all treating medical practitioners and allied health providers of the children, the practitioners or providers are hereby authorised and empowered by this Order to provide all medical history, information, reports, diagnosis and any other relevant information about the children's welfare, development and progress at the request and cost of the parent requesting same.
That the parties undertake and complete a parenting programme such as the Anglicare “For the Kids” programme or with a similar programme provider as follows:
(a)Each parent, within fourteen days of the date of these Orders are to contact the programme provide and enrol in the programme;
(b)The parties will attend each session of the course and comply with all reasonable directions of the programme providers;
(c)At the conclusion of the programme each parent provides the other parent with a certified copy of the certificate of completion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 258 of 2017

MR SNOWDON

Applicant

And

MS SNOWDON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting trial about two children: [X], who is almost four years old and [Y] who is 16 months old. The parties separated in early 2017, that is, before [Y]’s birth, and that separation was initially under one roof. The parties lived separately or at least in different dwellings from April 2017. It appears that the circumstances of separation were a time of great tension and distress for both parties. It appears that soon after the separation the mother formed a new relationship with a Mr B, a person whom she met on social media, it appears.
Around the time the mother formed her new relationship, she left the former matrimonial home and moved into a women’s shelter. Later, she obtained private accommodation. The mother has made, particularly in her affidavit material, allegations of family violence. The allegations are vague, but I am satisfied that in 2011, the father punched a wall in the matrimonial home causing damage; in 2016, he slapped his daughter [X] - she has adopted the name [X], apparently - and he also, according to the mother, an allegation which I accept, engaged in some name calling. Whether this amounts to the coercive and controlling behaviour that is the primary definition of family violence in section 4AB of the Family Law Act is less clear.
In 2013, the mother made an affidavit in other proceedings - other family law proceedings concerning the father where she denied the existence of any family violence in the relationship with the father and extolled in detail his virtues as a parent. She said in evidence in this trial that it was not until she spent time in … House, the women’s shelter I have referred to, that she reflected and saw that the father’s behaviour during the relationship or during the marriage constituted family violence.
I am not satisfied that the mother is a reliable witness in all respects, and I am not prepared to make any finding that the father has perpetrated family violence against the mother or anyone else. Another aspect of the mother’s evidence that gave me cause for concern was her claim that on one of the two occasions [X] had spent overnight time with her father since separation was because of the father’s insistence that she not take [X], then two years old in April 2017, to spend an overnight visit with her new partner Mr B on 27 April 2017. She said that she had commenced that relationship 10 days before. The mother had difficulty seeing that the father may have had legitimate concerns for the child in those circumstances. To me, that suggested a lack of insight.
The mother has a diagnosis of cyclothymic disorder which, I understand from the family report, has some characteristics in common with bipolar disorder, although, from reading the family report, it appears that it is a disorder of significantly less seriousness than bipolar disorder. There were aspects of the mother’s attitude and behaviour which caused me some concern including a rigid insistence on adherence to a particular diet while the children are in the father’s care in circumstances where she admitted the father had often cooked during the relationship and he cooked nutritious food. That was a point that was raised in the family report and is also apparent from the mother’s affidavit material.
I am concerned that the mother’s proposal for the children to spend time with the father is the minimum time appropriate and I am satisfied that she is suspicious and untrusting of the father. I am not satisfied that there is a proper basis for her suspicion and mistrust, however. The family consultant observed that the father appeared to be a capable parent and a parent attuned to the children’s needs. She expressed no concern at all about the father’s parenting capacity.
The father’s evidence also gave me reason for concern. I am satisfied that he was angry and obstructive towards the mother, particularly around the time of separation and on one occasion at least refused a perfectly reasonable request from her to remove personal belongings. The father also said that he suffered significant distress as a result of financial difficulties and this litigation.
The family consultant recommended that he attend counselling to address relationship issues including communication, conflict resolution and anger management. He had commenced counselling as recently as three weeks ago in response to that recommendation which, if I recall correctly, was made in October 2018. His evidence suggested that he initially had not seen the point of that recommendation. I am satisfied that he will benefit from such counselling, and, ultimately, in cross-examination, the father appeared to acknowledge that he would.
I am satisfied that both parents are competent, capable parents devoted to their children. Unfortunately, they have become enmeshed in conflict, and neither have the necessary skills or personal attributes to see beyond that conflict or to see the other person’s point of view. Unfortunately, the best interests of these two young children have been overlooked to some extent by both parents.
Ultimately, the parties narrowed their differences to whether the children, in broad terms, would spend four nights a month with their father or eight nights a month. The actual evidence, including the affidavit evidence, put forward by both parties, was rendered largely irrelevant by this narrowing of issues. The mother suggested, in the submission of her counsel in final submissions, that given the father’s proclivity to stress and the need for the children to adapt to any change of regime, a cautious approach was required.
The father suggested that the arrangements should move from the present arrangement which is the children spend no nights with him to two nights a week almost immediately. The mother, on the other hand, proposed that the transition to the children spending four nights a month with the father should take place over some two or three years or two and a half years, I think.
I found the most useful evidence on this issue was that given by the family consultant. She generally supported the father’s proposal on a gradual basis given that little time the children had actually spent with the father up until now. She considered the mother’s proposal was the minimum that was required for the children to develop a relationship with their father and she did not support the mother’s proposal.
Under the Family Law Act, I must have regard to the legislative pathway set out in the Act. The Court must, of course, take the approach that the best interests of the children are the paramount consideration in making a parenting order, and under section 60CC of the Act, the Court in determining what is in a child’s best interests must take into account as one of two primary considerations (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It was not submitted that (b) was relevant in this case.
So the primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. In the circumstances of this case, there is an agreed position that the children will continue to live with their mother. The inquiry is, of course, as to what amount of time should the children spend in order to have the benefit of having a meaningful relationship with their father.
In addition, there are considerations set out in subsection 60CC(3). The most relevant of these and, really, the only matters on which oral submissions were made was the likely effect of any changes in the children’s circumstances and, in broad terms, the submissions about the capacity of each of the parents and in particular submissions made by the mother about the father’s capacity. The father made no particular submissions about any incapacity by the mother.
In relation to any change in the children’s circumstances, I am satisfied that it is necessary that there be a change in the children’s circumstances so that they might spend significantly more time than they are presently spending with their father. There will not be a separation from either parent or any other child. So parts (i) and parts (ii) of section - of subsection (3)(d) are not relevant.
In relation to the change in circumstances, it was submitted by counsel for the mother that given the evident proclivity of the father to stress - and he talked about that himself, particularly the financial stress and the stress of litigation - and his history of apparently stressful behaviour, including punching a wall and damaging it in 2011, slapping Ted in 2016 and name calling at some indeterminate time, I have the impression around separation, then there ought to be steps taken to ensure that he and the children have the chance to gradually adapt to the new circumstances. I think there is something in that submission, but not nearly as much as counsel for the mother made of it. So I do propose to make orders that provide for a gradual change with a view to ensuring that the children have the best chance of adapting to their new circumstances and also having regard to their age, particularly [Y]’s very young age, at a little more than one year old at the moment.
In relation to capacity, much of the affidavit material of the parties was devoted to questions of capacity, and particularly the mother’s allegations against the father relating to family violence, which I have already mentioned, and other matters, including drug use. The mother submitted that the father has a history of cannabis use and that there ought to be, in fact, orders stretching into the indeterminate future permitting her to require the father to undergo random drug testing.

There was an order made about a year ago that the mother be permitted to seek random drug tests of the father by urinalysis. I was told without demur from, I think, counsel for the mother that there had been two requests for random drug tests pursuant to that order. Both had been complied with, and both returned negative results.
Given that over the past 12 months the mother was entitled to seek up to 12 random tests and that she sought two and both were negative, I am not satisfied that there is any real indication that the father is a heaver user of cannabis or is dependent upon cannabis or, indeed, that he uses cannabis at all. In evidence he denied that he currently uses cannabis and said he ceased cannabis use two years ago. I am not satisfied that there is any evidence that cannabis use is currently affecting his parenting capacity. I do not propose to make an order that drug testing continue.
I am satisfied that broadly speaking the father’s proposal should be accepted. However, it should be through graduated steps, to ensure that the children have the best chance of adapting to those circumstances. The parties made their proposals using a four-week cycle, taking into account the father’s work roster. The orders I propose to make will adopt that same four-week cycle.
I also propose to have effectively a three-stage graduation of the time. So from now until the end of May, which will be about 16 weeks, will be stage 1. From the end of May to September, towards the end of September - 25 September is an approximate date. As I am going to work on a weekly cycle, whether it is precisely 25 September is something that I will leave Mr Story to work out when he drafts the orders.
Suffice to say that the regime will operate from the beginning of next week, that is, Monday, which will be week 1, and then in whole weeks thereafter. So as I say, stage 1 will be 16 weeks, starting from Monday. Stage 2 will be at the end of that 16 weeks and go to the end of the nearest whole week closest to 25 September 2019.
Week 1 will be in the first stage, that is, from now, from next week, for 16 weeks. In week 1 [X] will spend time with the father from 4.30pm Friday to 5pm Saturday and [Y] will spend from 9am till 5pm with the father on Saturday. Week 2 will be the same. Week 3 will be [X] spends time with the father from 4.30pm Tuesday to 9am Wednesday; changeover at CatholicCare, of course, subject to some other remarks I will make. There is no provision, as I understand it, because the father is working the entirety of the week, for [Y] to spend time with him.
Week 4 [X] will spend time with the father from 9am Monday to 4.30pm Tuesday. That is on the assumption that the father is not working at that period. And [Y] will spend from 9am to 4.30pm on the Monday and 9am to 4.30pm on the Tuesday with the father. So in the first stage, there is no overnight time for [Y], but there is one night a week for [X].
The second stage will be from the end of May – 16 weeks, whenever that is; I have not calculated that – until, as I say, the end of the whole week nearest 25 September. And in that period the regime will be as follows. Week 1, [X] 4.30pm Tuesday to 9am Wednesday and 4.30pm Friday to 5pm Saturday, two nights, and [Y] one night, from 4.30pm Friday to 5pm Saturday. In week 2, [X] 4.30pm Tuesday to 9am Wednesday and 4.30pm Friday to 5pm Saturday and [Y] the same, in the second day, that is, 4.30pm Friday to 5pm Saturday.
Week 3, [X] 4.30pm Tuesday to 9am Wednesday and 4.30pm Friday to 9am Saturday and [Y] 4.30pm Tuesday to 9am Wednesday. In week 4, [X] 9am Monday to 4.30pm Tuesday and 9am Friday to 9am Saturday and [Y] 9am on Monday to 4.30pm on Tuesday, and in addition, in the case of [Y], on the Friday, 9am to 4.30pm.
The effect of that is that for that period, [X] will spend two nights a week with his father and [Y] will spend one night a week. Beginning at the end of that period, which, as I say, is the end of the nearest whole week to 25 September, [Y] will move to the same regime as [X], as I have just set out for the second stage. The changeover will be at CatholicCare. However, 50 per cent of the time, that is, half, the changeover will take place, I am assuming because of the mention, at McDonald’s … Road. That is considered to be a neutral place.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 8 March 2019

[2019] FCCA 588

31 January 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness