SOLWAY & LAWLER

[2015] FamCA 1039

FAMILY COURT OF AUSTRALIA

SOLWAY & LAWLER [2015] FamCA 1039

FAMILY LAW – CHILDREN – Application by father to spend time with and communicate with child – Allegations of family violence – Whether there should be an order for shared parental responsibility – Order that child live with mother – Order that child spend time with father – Order that child communicate with father – Order that parents have shared parental responsibility in respect of child’s religion, overseas travel, changing the child’s primary place of residence and major medical, psychological and psychiatric treatment - Order that mother otherwise have sole parental responsibility for the child

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Solway

RESPONDENT: Ms Lawler

INDEPENDENT CHILDREN’S LAWYER: Ms Higgins

FILE NUMBER: LNC 208 of 2014

DATE DELIVERED: 3 November 2015

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 3 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Henderson

SOLICITOR FOR THE RESPONDENT: Walker Henderson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Henderson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Higgins

Bishops

Orders

1. BY CONSENT all extant orders are hereby discharged.

2. BY CONSENT B born … 2010 (‘the child’) shall live with Ms Lawler (‘the mother’).

3. Subject to these orders or any written agreement between the parties, the parties shall have shared parental responsibility when determining:-

   (a)the child’s religion;

   (b)overseas travel of the child;

   (c)changing the child’s primary place of residence from North/Western Tasmania; and

   (d)any major elective surgery, psychological treatment and/or psychiatric treatment for the child (except as otherwise provided in these orders).

4. The mother shall otherwise have sole parental responsibility for the child.

5. The mother shall exercise sole parental responsibility when determining educational issues for the child.

6. The child shall have telephone communication with Mr Solway (‘the father’) at 6.00pm each Wednesday and that the mother arrange for the child’s telephone to be turned on and that the child be available to take calls at that time.

7. As and from the first day of term 2017 these telephone calls shall only operate during school term.

8. Nothing in these orders shall operate to prevent the child from being referred to a school counsellor or counsellor by her school teacher or school principal or general medical practitioner.

9. The mother shall authorise the child’s school to provide to the father a copy of the child’s school report, school newsletters, school information routinely provided to parents, the child’s attendance record and school photograph order forms (at the expense of the father).

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child save that the mother with sole parental responsibility for the child shall alone be responsible for decisions relating to all treatment or other interventions undertaken by the third party unless major elective surgery, psychological treatment and/or psychiatric treatment for the child.

11. The child shall spend time with father as follows:-

    (a)On each alternate weekend from 4.30pm on Friday until 4.30pm on Sunday;

    (b)Commencing to coincide with the conclusion of term 1, 2017, for the first half of each of the mid-term school holiday periods from 12 noon on the first Saturday following the conclusion of the school term until 12 noon the following Saturday;

    (c)Commencing 1 January 2018, for one half of the longer Christmas/Summer school holiday period on a week about basis commencing at 12 noon on the first Saturday following 1 January until 12 noon the following Saturday and each alternate week thereafter (the child to be returned to the mother three (3) days before school commences);

    (d)On Father’s Day, if the child is not otherwise in the care of the father from 12 noon on the Saturday until 4.30pm on Father’s Day;

    (e)In 2016 from 3.00pm on Christmas Day until 3.00pm on 27 December and each alternate year thereafter;

    (f)In 2015 from 3.00pm on 23 December until 3.00pm on Christmas Day and each alternate year thereafter;

    (g)Such other/alternate times as may be agreed between the parties.

12. Each parent is hereby restrained from abusing and assaulting the other parent at handovers.

13. Within fourteen (14) days of the date of this Order, the father and the mother shall immediately enroll and complete the parenting separately counselling and the induction course for the Region C Children’s Contact Service.

14. Within fourteen (14) days of the date of this order, the mother shall make all such arrangements to facilitate the child’s attendance at protective behaviours and interpersonal counselling.

15. The mother and the father are each hereby restrained from denigrating the other parent in the presence of or within hearing of the child.

16. All handovers are to occur at the Region C Children’s Contact Service at D Town and in the event that the Region C Children’s Contact Service is not available for such changeover then outside the E Town Police Station.

17. The time the child spends with the father, pursuant to these orders, shall continue each week until the commencement of school holidays in 2016 at which the normal school holidays will apply and the time on each alternate weekend will not apply over school holiday periods.

18. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

19. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits remain on the court file.

20. All extant applications be dismissed.

IT IS NOTED

1. The father attended the hearing today by telephone at his request.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Solway & Lawler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER:

Mr Solway

Applicant

And

Ms Lawler

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Mr Solway, (‘the father’), and Ms Lawler, (‘the mother’), in respect to their daughter, the child B, (‘the child’) who is now aged five, and was born in 2010.  The proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia in May 2015, as there were serious concerns about how long this case would take, and the complexity of the case.

2. The parties have had legal assistance and have had the benefit of an interactive Independent Children’s Lawyer, and what commenced as a huge and perhaps four or five day hearing has now been reduced to one which was conducted over a few hours on today’s date.

3. The issues are now quite narrow.  The first is whether there ought to be an order for equal shared parental responsibility, as sought by the father, or whether there should be orders for limited shared parental responsibility, with the mother otherwise having sole parental responsibility, as sought by the Independent Children’s Lawyer, and as adopted by the mother. 

4. The second issue arises out of Christmas holiday time between the child, her father and her siblings.  The father’s view is that the arrangements promoted by the Independent Children’s Lawyer, including that the child shall spend Christmas with him from 2015, at 3.00 pm, on 23 December, until 3.00 pm on Christmas Day, and other agreements are in place. 

5. The second issue was in relation to when that broader school holidays time should commence, whether it should operate from this year as sought by the father, or next year as recommended by the Family Consultant, adopted by the Independent Children’s Lawyer and followed by the mother. 

6. There was to be an issue in relation to telephone calls.  However, the mother and father have now agreed, and I think it’s supported by the Independent Children’s Lawyer, that there be one telephone call a week, 6 o’clock every Wednesday night.  There is an issue as to who starts the call and who ends the call.

7. There also seemed at one stage to be an issue about whether changeovers, should be at the Region C Children’s Contact Service, D Town, or at the E Town Police Station.  I have told them I accept that there is time available at the Region C Children’s Contact Service, and I will be directing the parties to attend and do the induction in relation to that.  This is because it is a much safer and happier place for a child to be handed over, rather than at a police station, which sometimes has difficult connotations, particularly for small and impressionable children.

8. In relation to the consent matters, I will be ordering that the father contact the child on her telephone at that time, and be ordering that the mother do her best to have the child available and ensure that the telephone is turned on each Wednesdays at that time.

9. Each of the parties has been great supporters of the Australian population.  The father has four children of previous relationships, namely F, G, H and J; and the mother has two children of previous relationships, namely K and L.  There is an issue between the parties as to when they commenced cohabitation.  There is also an issue between the parties as to when their relationship finished, and who was the primary carer of the child.  Fortunately, in the context of this matter, I do not need to make those findings, as it is superfluous to the needs of the Court.

10. There were worrying incidents in April 2014.  The mother asserts that the father threatened harm to her and to her children.  The father denies making those threats.  There is evidence, over that period of time, that there were numerous telephone calls made by the father to the mother, and that over the next 12 months the child was withheld from the mother on a number of occasions, and was withheld from the father on at least one major occasion and on other less time‑consuming occasions.  It has been a terrible time for this child.

11. In addition, the mother complains that the father is a controlling man who has controlled her and treated her like slave.  The father denies that assertion.  It is the view of the Independent Children’s Lawyer that notwithstanding those cross-complaints about violence that the child should have a relationship with the father.  As I read the material I was troubled about the history; however, it appears to me that the family violence order of recent times has worked quite strongly and provides the mother with some sense of support, although it’s clear from her evidence that she still has a continuing fear. 

12. Whether that fear is well founded is challenged by the father; however, hearing the mother’s evidence and reading her evidence I am satisfied that it is a real fear and that the arrangements which the Independent Children’s Lawyer puts in place in her view are the safest for the child bearing in mind that the child has a close and loving relationship with her father and a close and loving relationship with her paternal siblings.

13. I include in my reasons the chronology provided by the Independent Children’s Lawyer, which is as follows:-

    1976             [the father] born      

    1988             [the mother] born

    2002             G born (paternal sibling)

    2004             H born (paternal sibling)

    2006             J born (paternal sibling)

    2006             K born (maternal sibling)

    2008             L born (maternal sibling)

    2008  Father says parties commence relationship

    2009  Mother says the parties commence relationship

    2010             B (the child) born

    2012  Father says parties separate and child living with him

    2014   Father says mother retains child whereas mother says initial separation occurred

    27 April 2014  Mother says final separation occurred

    27 April 2014  Police Family Violence Order issued against father

    1 May 2014Father institutes proceedings in Federal Circuit Court (interim and final parenting orders sought)

    14 May 2014   Mother files response to interim and final orders

    18 June 2014  Interim parenting orders made by consent providing for child to live with mother

    Family Report ordered

    25 July 2014   Family Report filed

    29 August 2014                 Father retains child

    3 September 2014              Mother files application in a case for return of child

    10 October 2014               Mother files contravention application

    22 October 2014               Father files response to application in case

    27 October 2014               Mother files amended application in case

    29 October 2014               Matter listed for interim hearing

    Interim parenting orders made by consent

    Child returned to care of mother

    Independent Children’s Lawyer appointed for child

    1 December 2014               Matter listed for mention in D Town

    (trial directions made and matter listed for hearing in D Town sittings 22 June 2015)

    7 February to 13 April 2015          Mother retains child and therefore child spends no time with the father

    February 2015  Child commences Kindergarten at M School

    20 April 2015  Father retains child

    23 April 2015  Mother files application in case

    1 May 2015  Father files response to application in case

    7 May 2015  Matter listed for interim hearing

    Interim parenting orders made by consent

    7 May 2015Matter transferred from Federal Circuit Court to   Family Court of Australia

    23 June 2015  Magellan Report filed

    5 August 2015                   Trial directions made

    14 October 2015               Matter listed before Registrar for compliance check

    19 October 2015               Mother and Father file trial affidavits

    20 October 2015                  Independent Children’s Lawyer files affidavit of Ms N (child’s class teacher for 2015)   

    21 October 2015                  Order made listing matter for hearing to commence 3 November 2015

1. These are proceedings after the recent amendments to the Family Law Act 1975 (Cth), and I have to have significant regard, and I do have significant regard to the question of family violence. Fortunately, the mother is represented by competent counsel who recommends the course which the Independent Children’s Lawyer promotes. That gives me some sense that the mother is content with that course given the closeness of the relationship between the child and her father and her paternal family and the concerns that the mother raises about the father. I note that the father also raises concerns about the mother.

2. I do not give those concerns too much weight on the basis of the evidence of the school teacher that this child, despite what she has been put through in the last 12 or 18 months, is thriving at school, which is a credit to her and frankly a credit to the environment in which she is in at the present time. 

3. There were allegations of sexual abuse made by the father against the mother in terms of her household.  They have been dealt with significantly in the Magellan Report and in the reports of the Family Consultant.  I accept that this is a high conflict case where the parties are unable and perhaps unwilling to communicate and consult with each other.  I am satisfied that given the nature of the allegations and the circumstances in which they arise that they do not constitute an unacceptable risk to the child as was initially asserted.  That seems to be conceded by all parties given their consent to the orders.

4. Similarly, the risks of the father.  I understand, of course, that on country properties people have guns for all sorts of purposes that those in the cities do not really understand.  However, those guns have been removed from the father’s home.

5. Each of the parties has, from time to time, failed to comply with the court orders.  The independent children’s lawyer submits that her orders are, in all of the circumstances, in the best interests of the child.  That is, that the child should continue to attend M School, and to that end there was a significant disagreement between the parents as to which school the child could attend.  The father asserted that the child was originally to go to O School where her paternal siblings go, and the mother conceded that but certainly in different circumstances and at a different time.  The parties were unable to effect any sensible resolution of that at the beginning of this year, and one of the decisions would have left the child to travel a significant time each year, from the mother’s evidence. 

6. The parties can barely communicate.  The father says he can, although from the evidence of the mother she says that his method of communication is by way of control and bullying.  That is denied.  But whatever the reason, these parents cannot communicate. 

7. In terms of the relevant section 60CC factors, the child has had a relationship with both parents from birth until now and the child loves each of the parents and each of the parents loves the child.  The child will benefit from orders which will enable her to continue to have a relationship with each parent.  It is how that can be achieved in a safe and secure way given the concerns raised by the Family Consultant.  There is evidence that the child may have been exposed to family violence, and there is a suggestion by the father that the child was subject of sexual abuse, but I have dealt with that earlier.

8. There were cross-claims by each of the parties about rough or difficult approaches to the mother’s elder child K. 

9. The child is aged five.  The father said when giving evidence that her views should be overwhelming and we should do what the child says.  I do not agree with him.  This is a five year old child and she needs boundaries, she needs definition and she needs parental direction.  She will need that for many years until she is in her teens.  She will no doubt confront both of her parents as children do in their teens, and I suspect this child will be no different.

10. The child has a good relationship with each parent, although there is some issue about the father, allegedly, endeavouring to alienate the child from the mother.  The father gives evidence that the mother tries to alienate the child from him.  Although, the Family Consultant made some comments, as did the Magellan report, on the veracity of that and some of that seemed to be quite mendacious.  Each parent wants the child to live with them for as much time as possible and I repeat the material that I’ve said earlier in these reasons. 

11. Each parent has endeavoured to take control of the child but they have done so at times in a way contrary to the Court orders and contrary to the wellbeing of the child.  No submissions were made in relation to the parents’ support of the child and I do not give that, therefore, any weight. 

12. The child remaining primarily in the mother’s care at this present time seems to be the most stable approach, given the hostility between the parties and given the matters which are described in the family report and described in the various affidavits. 

13. In terms of section 66CC(3)(e), the parties live about 90 minutes apart.  It is not practicable for a child of this age to spend time with the non-residential parent during the school day and the distance is quite significant when one looks at a two-way trip. 

1. From the evidence in terms of section 60CC(3)(f), it’s clear that the mother is able to meet the child’s needs and it is probably likely that the father has been able to do so, subject to the criticisms that I’ve made earlier on. 

2. In terms of s 60CC(3)(g), there is some concern about the father’s lifestyle, particularly given the number of relationships he has had in recent times, although it appears that his current relationship is quite strong and that the partner in that relationship, according to the Family Consultant, does not take backward steps.  Whether that is a good or a bad thing will be a matter for time to tell as time passes. 

3. Section 60CC(3)(h) and (i) are not relevant and no submissions were made in relation to those. 

4. In terms of section 60CC(3)(j) and (k), I refer to the family violence order I referred to before and note that there are proceedings in the Magistrates Court between the parties in relation to allegations of stalking against the father by the mother and in relation to a proceeding by the police against the mother in relation to an alleged assault.  The real concern in this case is that it will lead to continuing litigation.  This child has been the subject of litigation since 2012, some approximately three years ago.  So, of her five years so far, 60 per cent of which has been spent with judges, family consultants and experts peering over her shoulder. 

5. She needs rest and she needs this time to have a childhood and to enjoy a childhood because all of us, as we get older, look back on our childhood and it should be something that we can smile about and reflect happily on rather than in a negative sense.  Part of that has to be that these two parents have to stop arguing and have to have a stable, sound relationship for the child.  I accept the recommendation by both parties and the Independent Children's Lawyer that the child should live with the mother.  I accept and adopt the Independent Children's Lawyer’s submission that there ought to be the split type order that she suggests regarding parental responsibility. 

6. This is not one where the presumption arises given the various allegations of each other.  It is one where the presumption must not arise.  I have considered, however, all of the factors and all of the relevant factors as to whether it should occur.  To do so would be to present this child with decision-making.  In other words, decisions would not be made.  I am content that the approach adopted by the Independent Children's Lawyer should work and it would mean that the father will know about medical issues, will know about school issues but there will be decisions made for the child.  In terms of time, that is agreed, as is communication and I will make those orders. 

7. In terms of the commencement of the school holiday period, I am very conscious of the matters set out by the Family Consultant and I intend to adopt her recommendations to that end.  Accordingly, I will make orders set out in the minute of order tendered by the Independent Children's Lawyer which I will mark ‘A’ and initial and date with today’s date. 

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 3 November 2015.

Associate:     

Date:              3 November 2015