SOWLER & EDMONDSON

[2014] FamCA 737

FAMILY COURT OF AUSTRALIA

SOWLER & EDMONDSON [2014] FamCA 737

FAMILY LAW – CHILDREN – With whom a child spends time – Family violence – Where violence directed towards the mother is unlikely to occur into the future.
FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of children – Where it is in the children’s best interest to spend time with their father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sowler

RESPONDENT: Mr Edmondson

FILE NUMBER: CAC 669 of 2013

DATE DELIVERED: 6 August 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATES: 3–4 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McKeown

SOLICITOR FOR THE APPLICANT: Mr Carmody

COUNSEL FOR THE RESPONDENT: Mr Theakston

SOLICITOR FOR THE RESPONDENT: Mr Harrison

Orders

1. The mother, Ms Sowler, have sole parental responsibility for the children, B born … 2006, Z born … 2008 and H born … 2011.  This however is subject to the restrictions hereafter set out.

2. The children live primarily with their mother.

3. The children spend time with their father:

   (a)On every third weekend commencing on 9 August 2014 at 10am Saturday until 3pm on Saturday with the father’s mother being present during the time that the children are with their father.  This will continue for a period of three months. 

   (b)Thereafter the children spend time with their father on every third Saturday from 10am Saturday until 3pm on Sunday with the father’s mother being present during the whole time that the children are with their father.  This will continue for a period of three months.

   (c)Thereafter on every third weekend from 10am Saturday until 3pm on Sunday without the need for the father’s mother to be present. 

   (d)All of the abovementioned times and arrangements are unless the parents otherwise agree. 

4. If Mother’s Day should fall on a weekend where the children would otherwise spend time with the father the children’s time with the father will finish at 3pm on Saturday instead of 3pm on Sunday (if such time is applicable).  (See stage (c) above.)

5. If Father’s Day should fall on a day when the children would not ordinarily spend time with their father, then the children will spend time with their father on that weekend, in accordance with the abovementioned three stage program, noting that such time may not necessarily fall on the Sunday in stages (a) and (b).  This will occur even if the Father’s Day weekend immediately follows a weekend on which the children have spent time with their father.  If it should so fall then the children will resume the normal pattern of time with their father four weeks after the Father’s Day weekend.  If Father’s Day should fall on two weekends after the last time the children will spend time with their father then the children’s time with their father will resume three weeks after the Father’s Day weekend. 

6. The children spend time with their father in years ending in an even number or zero from 10am on Christmas Eve until 5pm on Christmas Eve and in years ending in an odd number from 10am on Christmas Day until 6pm on Christmas Day.  In each case the arrangements are subject to what the parties might otherwise agree.

7. (a)      The children may telephone the parent with whom they are not living at any reasonable time at any time they wish to do so and the parent with whom they are then living will facilitate such a telephone call. 

   (b)The father may telephone the children on each Monday and Wednesday between 5pm and 5:30pm on the children’s mobile telephone.  The children’s mother will facilitate the children’s being available for such a telephone call. 

   (c)If for whatever reason the children may not be able to take the call on the designated days and at the designated time, the mother will do all that she reasonably can to inform the father and to make an alternative arrangement for a substituted time for the call with the father. 

   (d)In addition, the father may telephone the children on each of their birthdays between 5pm and 5:30pm (unless the parents otherwise agree). 

8. Any change-over in relation to the children will take place at McDonald’s family restaurant at Town C in New South Wales, unless the parents otherwise agree.

   Matters relating to the children’s general welfare

9. The children’s mother authorise any school the children attend to provide information to the father regarding the children’s progress at school and any notices in relation to the children and copies of their reports at his expense.  To facilitate the implementation of this order a copy of this order may be given to any school that the children are attending.

10. The mother keep the father informed of any major developments in relation to the children’s medical and health issues.  This will include the mother keeping the father informed of the children’s medical appointments other than for routine or normal childhood illnesses and in addition, the mother will authorise any medical practitioner attending upon the children to provide information to the father about the children from time to time at the father’s expense. 

11. The father shall continue to liaise with any treating professional that prescribes treatment for the children and continue to obtain guidance from any treating professional about how he might properly fulfil his function as a father of the children. 

12. The parties are to advise the other party in writing, within 7 days of any change of address or telephone number.  Neither party is to disclose or publish that information to any other person.

13. The parents may communicate via text message in relation to issues involving the children.

14. Neither parent shall make any critical or derogatory remarks about the other parent or family member of the parent within hearing of any of the children or permit another person to do so.

15. The father be and is hereby restrained from ingesting, injecting, snorting or in any other way consuming any illicit drugs for a period of 12 hours prior to and during his contact with the children. 

16. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

17. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

18. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

19. The matter be removed from the Pending Cases Inventory.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sowler & Edmondson 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 CANBERRA

FILE NUMBER: CAC 669 of 2013

Ms Sowler

Applicant

And

Mr Edmondson

Respondent

REASONS FOR JUDGMENT

1. Briefly, this matter came to this court by way of appeal from the Local Court at Town D, New South Wales, and it became apparent when the matter was before me that there were genuine issues between the parents about the time that the children would spend with each of them.  Although the father initially sought an order that he have equal shared parental responsibility with the mother, he correctly and properly, in my opinion, abandoned seeking that order during the course of proceedings. In particular, during cross-examination on 3 July 2014, the father said, in what I regard as being a significantly important concession on his part, in response from this question from me:

   So that’s not a big issue for you if she were to have sole parental      responsibility?  She said in her evidence in the end, she said she would      consult with you, but in the end, she should have the final say.  Is that   something with which you would have a problem?

2. To which the father replied:

   Not really, your Honour, not really, no.  She’s a very intelligent woman      and she would be able to make the right decision on her own.

3. In this regard, I therefore determined, given the nature of the relationship between the parties, the age of the children and the history of the time that the children have spent with each of them, that it would be appropriate that the mother should have sole parental responsibility.  In this regard, because that is so, I am not obliged to consider a number of other matters, including a mandatory consideration about whether or not the children should spend equal time with the parents or substantial and significant time.  For reasons that will become apparent neither of those would have been practicable in this matter in any event.

4. It was also agreed between the parents that, notwithstanding the somewhat acrimonious – in fact, very acrimonious – nature of the relationship between the parents, that the children should, nevertheless, spend time with their father, and it was agreed by the mother that the relationship between the children and their father was an important thing for their best interests.  She did, however, express concerns about the children, and these were summarised by the family consultant in one of the two reports provided by her.  The one I am reading from is the report provided on 30 June 2014.  In paragraph 29 of that report, Ms E said as follows:

   It is in the best interests of the children that they spend time with their       father, as long as there are no safety issues for the children.  The alleged          safety factors which have been identified are:

   ·     a poor relationship between the parents;

   ·    alleged family violence; and

   ·    the father’s alleged drug use.

5. In making any order under part VII of the Family Law Act, it is imperative that I should place the best interests of the children as my paramount consideration, and those best interests are to be determined by reference to a number of matters set out under the Act.  The way in which those matters are to be considered has varied from time to time as a result of different amendments made to the Act because of Parliament’s increasing concern that children should continue to have a proper relationship with both parents if it were possible for that to occur. 

6. In particular, the Act stipulates in s 60CC(2), that the primary considerations in determining what is in a child’s best interest, or in this case, in the children’s best interests, are as follows:

   (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 subject to, or exposed to, abuse, neglect or family violence.

7. And s 60CC(2A) provides:

   In applying the considerations set out in subsection (2) –

   (That is the subsection I have just read out) –

   the court is to give greater weight to the considerations set out in      paragraph (2)(b).

   (That is, to protect the child from physical or psychological harm.)

8. Taking these matters into account and looking with care at the matters identified by the family consultant, which, I might add, are reflected in the written and oral evidence of the mother, the three matters that need to be considered by me are as follows: 

9. First, whatever may be the relationship between the father and the children – and I am prepared to accept and do find that there is a proper relationship between him and the children, there is a poor relationship between the parents, and this necessarily has generated difficulties both about the children spending time with their father and about some of the factors that have been evident in the father’s life over the years, particularly in the period immediately preceding the parties’ separation.

10. In this regard, the second factor that Ms E identified (being alleged family violence) is a matter which is ordinarily one of great concern to me and to judges of this court.  In particular, when a parent is violent or both parents are violent, the children learn habits for resolving conflict which are distinctly unhealthy and not conducive to their growing up to be balanced citizens or to be happy in life.  Moreover, they are, of course, in some cases, the subject of the violence itself and run a genuine risk of harm to their physical safety.  In this matter, the violence, such as it is reported by the parties, both in their material and in the reports of the family consultant, appears to have been directed principally to one another. 

11. In this regard, the children’s mother asserts that it is the father who is the violent person and her only involvement was in responding in self-protection to that violence.  In particular, she asserts that on a number of occasions the father put his hands around her neck as if to choke her, and she reports, quite chillingly, from my point of view, that the children themselves over a period were replicating that behaviour and that she was concerned about this fact.

12. I look again at something that the children’s mother said to Ms E in paragraph 9 of the same report to which I referred previously, and it reads as follows:

    The mother alleges the father put his hands around her throat “quite a few times” and the children witnessed this.  She said that “[B] used to protect [Z] and hide with her”, and relevantly that only recently the children have “gotten to the point of stopping putting their hands around their throat as a game”. 

13. It probably does not need a judicial pronouncement to say that it is not appropriate that children should learn from their father behaviour such as choking someone and, moreover, to become so accustomed to it that they incorporate it into their play.  I accept that the comments that are made, the comments about what happened, did happen, and they are unquestionably a matter of concern to me.  However, what is important in this equation is that since the parties have separated, and in particular, since the father has now sought a degree of professional assistance, as had previously been recommended by the family consultant, it appears that this, as an issue, has retreated from the family dynamic. 

14. In this regard, I note the fact that the mother had indicated the children had stopped engaging in this unfortunate modelling behaviour – or engaging behaviour to be modelled by their father.  I note further that as between the parties, there appears to have been no repetition of the violence that had occurred in the past.  I note that the mother had said that the father “would get angry every time I needed to speak to him and that he used to do what she described as pushing, that he put holes in the wall and on one occasion threw a knife into the ground.”

15. These matters, I would hope, were consistent with the emotional distress that the father, in particular, felt at the breakdown of the relationship, and it is, to some extent, encouraging that there does not appear to have been any recent repetition of these matters.  Adding all those factors together, the violence, such as it was, occurred almost exclusively between the parents.  This, however, had an effect upon the children, as was indicated in the evidence, and I accept that evidence. 

16. It is also the case, however, that recent occurrences of the children’s spending time with their father do not appear to have brought forth the same sort of responses as previously existed.  It is to be hoped that the father will continue to accept and receive assistance from the professional help that he was ordered to when the matter was before me previously.  To that extent, the risk to the children arising out of family violence is, to some extent, diminished.  

17. One of the further matters identified by Ms E was the father’s alleged drug use.  In this regard, the father said to the court and swore on his oath that he had now given up taking the drugs that he had previously been involved with, and that he proposed to remain off those drugs in future.  The father does not have a problem with alcohol, he asserts. I accept that. 

18. There is a cynical part of me that says that it may well be that the father’s foregoing of his drug use was, in part, brought about by the fact that this trial was imminent.  On the other hand, watching him in the witness box, I formed the distinct impression that he was serious in what he was suggesting, and in the circumstances, I am prepared to give him the benefit of the doubt and hope that he recognises that it is in his children’s interests that he overcome his problem so that he can, in fact, have a proper relationship with them, that they can have a proper relationship with him, and that he can be someone that they are proud of, not someone they are afraid of or someone they are embarrassed about.

19. The third matter that was not raised by Ms E in her summary of the safety issues for the children, but which was certainly raised by the mother, is the fact that two of the children suffer from disabilities, which mean that on occasions their behaviour is both hard to control, hard to predict and difficult to neutralise in some instances.  The father has, again, attempted to attend a course about this, and I would urge on him the fact that attending one course does not solve all the problems in the world.

20. I note the father sought, and I have indicated I will make orders, that he will work with the professionals who are treating the children to assist them to live a full and proper life.  These, again, are encouraging signs which I hope will be the subject of fulfilment by the father in the future.

21. The mother sought – and I can understand why she would seek – that there should be professional supervision, at least initially, during the time that the children spend time with the father.  That was also the recommendation made by the family consultant.  Although that is the case, and taking all of the factors mentioned above into account, I have to balance the risk to the children in being subject to some of these dangers against the very real possibility, which I accept from the submissions of Mr McKeown, that if the father was obliged to meet the cost of professional supervision, that either he would be unable to do so, or might become unable to do so, and hence the pattern of time that the children spend with their father will be disrupted, or, alternatively, would not be able to occur at all.

22. Working backwards from these, I regard the last of those consequences as being inappropriate for the children, given the evidence I have received about the nature of their relationship with their father.  As to the second, it seems to me that it is important, taking account of the oral evidence of Ms E, that there should be predictability and continuity for the children.  In that regard, it is important that the chain of continuity should not be broken because the father is missing a day that he would ordinarily spend with the children, as a result of the burden imposed by the cost of professional supervision.

23. Finally, it seems to me that if the father is genuinely unable to provide the cost of supervised time that he spends with the children, it would be a tragedy that the children should, in the end, perhaps conclude that the question of money was more important than the question of the relationship they might have with their father.  That would then lead me to conclude that so far as the areas of risk that are identified are concerned, the balancing of the two primary considerations, that is, the need to protect the children and the benefit to them of having a meaningful relationship with their father, would suggest that it is appropriate that I should make orders which the father can carry out, and there are qualifications on the nature of those orders by other factors to which I will refer in a minute.

1. Principally, as I remarked during the course of the trial, if there is a person accompanying the father during the period of his time with the children, it will enable two things to occur:  first, if there is a problem, then I trust his mother to take whatever steps are reasonably necessary to ensure that the children are safe. I note, however, that I do not expect that the children will not be safe, for the reasons I have set out above.  Second, and importantly, in relation to the difficulties the father may encounter in dealing particularly with B, but perhaps also with Z, if there is a person whom he trusts and who has the children’s interests at heart to turn to for advice and assistance, then it will significantly reduce the possibility of there being any substantial problem so far as the safety of those two children is concerned or the safety, for that matter, of H. 

2. His mother fulfils those characteristics, and I find that she is the person who is appropriate to be the accompanying person for the purposes of the time, at least for the first six months that the father spends with the children.  I turn now to the other considerations because they define, in part, the reasons why I have made the orders that I have about the sort of time the father will spend with the children.  First, I was conscious of the fact that there was a recommendation from the family consultant that there should be a graduated program and that this should be concentrated on every third weekend.  This, indeed, was the way in which the father finally sought orders from this court. 

3. The difficulties with the distance between where the parties live means that it is going to be very difficult for the first three months, where the time with the children is limited to three hours on a Saturday.  The father remarked, somewhat wryly and, I think, understandably, that it was difficult if he stayed in Town C to find something to do – Town C being the handover point – for the three hours. 

4. Unfortunately, it seems to me that a graduated response, bearing in mind the nature of the relationship with the parents, the geography of where each is living, the history of the time that the children have spent with their father, the need for there to be the third person present initially and the recommendation of the family consultant, it seems to me that those are good reasons why the period should be graduated in the way that it is. 

5. I turn to other factors.  The first relates to the fact that one of the matters I am to take into account is the views of the children.  In this case, I am satisfied that the children wish to spend time with their father and should spend time with their father, and in this regard, the arrangements that I am putting in place will assist to bring that about.  I am concerned, and remain concerned, that while it may not have been articulated in a direct statement to the family consultant or possibly to either of the parents, that the children have been affected by the relationship with their parents, and it is really important that, in particular, their father should make it clear that they do not have to worry about any violence that he might occasion either to them, which I think is less likely, or to their mother, or, for that matter, to one of their siblings.

6. The part I have read out from the family consultant’s report previously, which suggests that B was taking his sister away to hide during times when the parents were engaged in conflict is a very telling image - a poignant one - and one about which the parents should not feel any degree of satisfaction.  The children are entitled to be children.  They are entitled to live in a safe environment.  They are entitled to be loved and to trust their parents.  It should not be for them to protect their siblings against the possibility that one of their parents may do something to them. 

7. I am satisfied that the children have a strong and primary relationship with their mother.  I am satisfied that the relationship they have with their father is one which has potential to grow beyond its current boundaries and that it will, in the end, be important for them as well.  The father, although not presenting as a very well-educated person, nevertheless impressed me with his consistency and enthusiasm for the time that he might spend with his children, and I accept the submissions made on his behalf that he has persisted in trying to spend time with the children, notwithstanding that there were some difficulties associated with his doing so.  Those are matters to his credit.

8. The other matters relating to his relationship with the mother are not to his credit. 

9. Also to his credit are the fact that he has undertaken some courses, as was recommended to him, and I hope that the combination of these orders, the fact that the matter has finished its time in court, and the importance of the children having a secure and continuous relationship will enable the father to take a different approach, and to genuinely accept the responsibilities of parenthood and not simply to look for the rights of parenthood and look for ways in which he can extract benefit for himself.

10. In saying that, I am not suggesting the father has pursued this matter with selfish intent. It is quite clear that he has not, and I would find so if I were asked to do so. It seems to me that, nevertheless, there are occasions where he has allowed his own needs to intrude over those of the children. I note that in the past, the father has, on some occasions, failed to take the opportunity to participate in a number of matters relating to the children, including spending time with them, including participating in decisions about long-term issues and including communication. These are factors referred to in s 60CC(3)(c) of the Family Law Act. 

11. In this regard, I note, in perhaps some defence of the father’s position – although, in my opinion, but limited defence – that the relationship between the parents has been such that cooperation would not have been a task that was easy to achieve.  Counter-balancing the factors and the adverse findings that I referred to above, it does seem to me that the father’s persistence with these proceedings, and in adjusting his approach to them to spend time with the children, is to be commended.

12. I have already spoken about the extent to which the father has fulfilled or failed to fulfil his obligations to the children.  His financial contribution to the children has not been significant.  His attention to finding work was, for a time, deficient but now appears to have been at least overcome in part, and I am satisfied that the burden of maintaining the children financially has rested almost exclusively with the mother and that she has carried out that task and that obligation with commendable zeal.  As the father says himself, she is a wise person and will make good decisions.  

13. The effect of the children not seeing their father would, I think, provoke a negative reaction in the children for the future.  Ms E commented, as I recall it, on the importance to children in having a relationship with each of their parents, if it were possible to do so.  If as a result of orders I made limiting the opportunities for the father to spend time with the children the children were precluded from having a relationship with him, in my opinion, it is likely that that would have an adverse effect upon them, and I believe that my view about this matter is supported not only by the father, from whom one would expect such an opinion, also in part from the mother’s evidence, which I found, on this issue, to be generous, and from the family consultant.  

14. I am also to take account of practical difficulties and the expense in the children spending time with their parents.  I have already spoken about the practical difficulties associated with professionally supervised time.  I have commented on the distance between the parents and the fact that, in large measure, that restricts the regularity with which contact might otherwise occur.  All those are factors which have a bearing upon the orders I have made, and in making those orders, I have reflected on what the parties themselves have thought was practicable and what the parties felt, themselves, was capable of being afforded. 

15. In this regard, I would hope that if circumstances change, and in particular if their financial circumstances change, there will be, as the orders suggest by the constant references to “unless the parents otherwise agree”, an opportunity to exercise a degree of flexibility in the interests of the children.  I am also directed to take account of the capacity of each of the parents and other persons, including grandparents, to provide for the needs of the children, including their emotional and intellectual needs.  I am satisfied that their primary residence with their mother will give the children the proper background and basis upon which they can properly grow into proper, well-rounded human beings as adults.

16. In this regard, I accept that the mother has borne the heat and labour of the day in dealing with the children’s disabilities and that her dedication to their welfare is something that needs recognition.  I am satisfied that the father has so far found that he has not been able to participate as much as he might want to do in those areas, and I accept the mother’s evidence that to some extent the father is in denial about some of those disabilities.  It is in the children’s best interests that he, as a father, both learns about the disabilities, learns about the treatment for the disabilities, assists in that treatment, confirms and supports the mother and the doctors in the way in which they are approaching the matter and gives the children the benefit of his strength and guidance.

17. I have already referred to the attitude of each of the parents to parenthood and to their responsibilities and I do not propose to add anything further about that.  I have also made reference to family violence and the consequences for the orders that have been made.  I note that there was, in the past, an AVO, but the circumstances of that order do not impact, at present, on the matters that I have before me. 

18. I am also directed under the Act to take account of whether it would be preferable to make an order which would be least likely to lead to further proceedings in relation to the children.  I do not know if there is any such order that has ever been created because circumstances change, parties change and events happen that are, in some cases, unforeseeable, and in many others, beyond the control of the parents.  I would hope that these proceedings are finalised by these orders.  I would hope that the children and the parents benefit from the certainty of doing away with past disputes and having some orders that are definite in what they require from each of the parents and what they provide to the children.  I cannot guarantee that there will not be other proceedings before this court, but I hope that the parents choose to spend their money on the children and in advancing their interests rather than on taking matters to this court. 

19. There are no other relevant facts and circumstances that I believe I should take into account.  I have carefully read the evidence of both parties.  I have considered the matters they put forward.  I was greatly assisted by counsel in this matter who provided the evidence before me, or presented the evidence before me, in a restrained, appropriate and calculating manner, which assisted my consideration as to what is to happen.  I am encouraged by the fact that both parents were prepared to make concessions in the best interests of their children and I wish them well for their future together.  The matter is removed from the pending cases list.  

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 6 August 2014.

Associate: 

Date: