Talbot and Tamber

[2016] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALBOT & TAMBER [2016] FCCA 550

Catchwords:
FAMILY LAW − Whether children live with mother or father – whether presumption of equal shared parental responsibility rebutted – relevance of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 65DA, 65DAC

Goode & Goode [2006] FamCA 1346

Applicant: MR TALBOT

Respondent: MS TAMBER

File Number: DGC 3363 of 2014

Judgment of: Judge Phipps

Hearing date: 9 March 2016

Date of Last Submission: 9 March 2016

Delivered at: Dandenong

Delivered on: 16 March 2016

REPRESENTATION

The Applicant: Appearing on their own behalf

Solicitor for the Respondent: Mr Ngwenya

Solicitors for the Respondent: Kaprivi Legal

Solicitor for the Independent Children’s Lawyer: Mr Sina Taghdir

Solicitors for the Independent Children’s Lawyer: Taft Lawyers

ORDERS

1. That the mother have sole parental responsibility for the children X born (omitted) 2007, Y born (omitted) 2008 and Z born (omitted) 2010.

2. That the children live with the mother.

3. That the children spend time and communicate with the father as follows:

   (a)Each alternate weekend from 10.00am to 6.00pm on Saturday and from 10.00am to 6.00pm on Sunday;

   (b)In addition to the time in (3)(a):

   (i)During the second week of each school term holidays from 10.00am to 6.00pm on Monday and from10.00am to 6.00pm on Tuesday;

   (i)During the second half of the school summer holidays each week from 10.00am to 6.00pm on Monday and from 10.00am to 6.00pm on Tuesday.

4. That each party is restrained by injunction from:

   (a)Denigrating the other party to, or in the presence of, the children or from permitting any other person to do so;

   (b)Discussing family law proceedings with or in the presence of the children or permitting any other person to do so.

5. That the mother authorise any school the children attend to provide the father, at his expense, with copies of school reports and notices circulars and the like normally made available to parents.

6. That the mother inform the father of any serious injury or illness suffered or incurred by any of the children.

7. That the order appointing the Independent Children’s Lawyer is discharged;

8. That otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3363 of 2014

MR TALBOT

Applicant

And

MS TAMBER

Respondent

REASONS FOR JUDGMENT

1. The mother and father have three children X born (omitted) 2007, Y born (omitted) 2008 and Z born (omitted) 2010.  The children currently live with the mother and spend daytime time only with the father.  The father proposes that the children live with him while the mother and the Independent Children’s Lawyer propose that the children remain living with the mother and spend daytime time only with the father.

2. The children have lived with the mother since separation and spent little, if any, overnight time with the father.  The father says his reasons for proposing that the children live with him are that the children’s education is poor, the mother’s sister beats the children, the mother does not care for the children properly and the dog bites the children.

3. Both parties were born in (country omitted).  The mother came to Australia on a humanitarian visa in (omitted) 2005 with her mother and siblings, an older sister, a younger sister and two younger brothers.  The mother’s father died in (country omitted) in 2007.  The father has a similar background and came to Australia about the same time.  His father died when he was aged eight.  He has no family in Australia.  His mother lives in (omitted) the capital of (country omitted) and he has a younger sister and two brothers.  Both the mother and the father had been in refugee camps in (country omitted) before coming to Australia, the mother since she was three or four years old.  The mother is aged twenty nine and the father thirty eight.  Both are Australian citizens.

4. The mother has an older daughter, aged ten, born (omitted) 2004.  She was born in (country omitted) and the mother told the family consultant Ms S that the father does not know of her existence.  The mother has two younger children born (omitted) 2015 and (omitted) 2015.  The father has a son aged about sixteen.  He is in foster care after Department of Health and Human Services - Child Protection intervention.  This child lived with the mother for a time but then went back to foster care.

5. The parties were in a relationship from 2006 until 2009 according to the mother, 2010, according to the father, but never lived together.  The father lived in (omitted) and the mother in (omitted) and they spent nights together at each other’s houses.  Once the children were born the father would see them at the mother’s residence.  The mother says they separated because of the abuse and violence of the father.  The father says the relationship ended because he found many things the mother said about herself were untrue.

6. Following separation the father continued to see the children at the mother’s home.  Ms S, the family consultant, found it very difficult to obtain a history from either party of the father seeing the children.  The mother obtained family violence intervention orders in 2010 and again in 2013.  She said on each occasion the father came to her residence and was abusive and aggressive.

7. At the time of the 2013 intervention order, 22 November 2013, the parties agreed on a parenting plan which provided for the children to spend time with the father from 4.00pm to 7.00pm on Wednesdays and Saturdays.  Some of these times occurred but many did not.  The mother says this was because the father did not come to the pickup point at (omitted) Police Station.  The father says it was because the mother did not take the children to the (omitted) Police Station.

8. These proceedings were commenced by the father on 31 October 2014.  On 10 February 2015 orders were made for the mother and father to have equal shared parental responsibility for the children, the children to live with the mother and the children to spend time with the father each Saturday from 10.00am to 2.00pm.  On 24 July 2015 orders were made for the children to spend time with the father on the first three Saturdays of each month from 10.00am to 5.00pm and the last Saturday from 10.00am to 2.00pm.

9. The mother and her six children live in (omitted) with her sister.  Her sister has six children, three of whom live in the same house.  The other three live with the maternal grandmother who lives close by.  X and Y attend (omitted) School with the mother’s eldest child, a few minutes’ drive from their home.  The mother works casually 3 days a week in a (employment omitted) at times which will permit her to deliver and collect the children at school.  Her mother helps with minding all the children.

10. The father is not employed and receives no Centrelink benefits.  He was employed as a (occupation omitted) with the (employer omitted) but it appears that finished in 2013.  He lives in (omitted) having moved in January 2016.  He shares the house with an adult and her 13-year-old sister.

11. The father gave evidence that he had married in the last few days.  His wife has three children 13, 10 and 8.  From his evidence it appears that he has known her for some time because he said his own children have met the three children during the times they spend with him.  The father was represented until three weeks before the hearing and filed an amended application and further affidavit prepared with the assistance of the solicitors.  No mention is made of his pending marriage or relationship with a woman who has three children.

12. The father says he is paying rent.  His share is about $850 a month.  He says his wife is helping him with the payment.  She is not living with him but she remains living in (omitted).  He said he is making arrangements for her to move to (omitted) and his current co-tenant and her 13-year-old sister will move out.  Some effort was needed in cross examination to obtain this information from him.

13. Section 65DA of the Family Law Act1975 (Cth) provides for a presumption that it is in the best interests of children for parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe there has been family violence or it is otherwise not in the best interests of the children to apply the presumption.

14. The mother says that the father was aggressive and abusive.  She describes an incident in 2010 when he went to her sister’s house and threw a chair.  He pushed the grandmother and the chair over onto the floor.  This was the first occasion when she obtained a family violence intervention order.  The second was when he came to the house again being abusive.  She says he has been aggressive and abusive throughout the relationship, starting with after she had the child Y.

15. The father denies the allegations.  His denials are unconvincing.  He was evasive in answering questions and there are some contradictions in his evidence and from what he said to the family consultant.

16. The father alleges that the children’s education is not being seen to, that the mother’s sister beats the children, that the mother does not care for the children and that the dog bites the children.

17. The mother moved the three children at school to the (omitted) School at the beginning of this year.  She did this because she said they were not learning at the government primary school they were attending.  The father’s allegation about the lack of attention to the children’s education is not correct.  The other allegations by the father have no foundation.  Ms S’s interviews and observations of the children show that they are well cared for.  There is no suggestion that they are subject to any form of abuse or are not well cared for.  The father’s allegations have no substance.  Overall his evidence lacks credibility.

18. In the conduct of the hearing no great attention was paid to the detail of the mother’s allegations about family violence but I am satisfied that what she says is correct. The father was aggressive and abusive. His behaviour comes within the meaning of family violence as that is defined in s.4 of the Family Law Act 1975 (Cth) This means that there are reasonable grounds to believe that there has been family violence so that the presumption that there should be an order for equal shared parental responsibility is rebutted on this ground.

19. Section 65DAC sets out the effect of an order that provides for shared parental responsibility. The parents are required to consult the other person in relation to the decision to be made about an issue and make a genuine effort to come to a joint decision about that issue. This requirement applies if there is a decision about a major long-term issue. These issues are defined in s.4.

20. Ms S says in her report that there is a high level of conflict between the parties which prevents them from developing a parenting relationship and from effectively communicating about the children. This observation is confirmed by the attitude each parent showed to the other during their evidence. There is little prospect that the parties will be able to consult and make a genuine effort to come to a joint decision about major long-term decisions. To require them to do so would be to require them to do something they are incapable of doing. It increases the risk of further litigation. It is preferable to make an order which is least likely to lead to the institution of further proceedings, a best interest consideration under s.60CC. The children’s best interests will be served by making an order for the mother having sole parental responsibility.

21. The pathway through the legislation described by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 refers to going to the best interest considerations before deciding whether the presumption should apply. In this case, I do not need to consider any of the other best interest considerations to conclude that it is not in the children’s best interests to apply the presumption that there should be an order for shared responsibility.

22. Section 65DA, the requirement to consider equal time, or if not equal time, substantial and significant time, does not apply and so the requirements of Part VII I must apply are the best interest considerations in s.60CC. The best interests of the children is the paramount consideration in s.60CA.

23. Section 60CC sets out the primary considerations and additional considerations. I will leave the additional considerations until later.

24. The first of the primary considerations is any views expressed by the children and other factors such as the children’s maturity or level of understanding relevant to the weight to be given to the children’s views.  Both the older children wish to remain living with the mother.  Ms S’s interviews make that clear.

25. The next of the primary considerations is the children’s relationship with each parent.  The mother is their primary carer.  She has had the principal care responsibility throughout their lives.  Ms S’s observations of them with their father and interviews with the two older children show a good relationship with the father.  The children live as part of a sibling group of six and their relationship with their siblings has to be taken into account.

26. The next consideration of relevance is the capacity of each of the child’s parents to provide for the needs of the children.  The mother is providing for the needs of the children including intellectual and emotional needs.  Ms S’s observations of the children shows this to be so.  The father’s proposal of care arrangements is uncertain.  He does not have an income and relies on his wife’s income for his own support.  He has only just moved to new accommodation and is proposing that his wife and three children come and live with him.  Nothing is known of his wife and three children, not even their names.  An assessment of the fathers ability to care for the children, even provide basic day-to-day needs, is not possible.

27. An assessment of the father’s ability to provide suitable accommodation and care of the children should they stay with him overnight is not possible for the same reasons.

28. Family violence and family violence intervention orders are a best interest consideration.  I have already discussed them.

29. The two primary considerations are the benefit to the children of a meaningful relationship with each parent and the need to protect the children from physical or psychological harm or from being subjected to or exposed to neglect or family violence.  The children have a meaningful relationship with the mother and the mother’s and Independent Children’s Lawyer’s proposal for time with the father will provide the circumstances in which they can have a meaningful relationship with their father.

30. The second of the primary considerations has some relevance.  What is said above about the father’s ability to provide for the children’s needs shows that if they have anything other than daytime time with their father there is some risk that they will be neglected and perhaps exposed to family violence.

31. All of these considerations lead to the result that the children’s best interests are served by the proposal of the mother and the Independent Children’s Lawyer.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 16 March 2016