Thompson and Thompson

[2007] FamCA 243

FAMILY COURT OF AUSTRALIA

THOMPSON & THOMPSON [2007] FamCA 243

FAMILY LAW - CHILDREN – Rebuttal of presumption of equal shared parental responsibility – s61DA(2)(b) and s61(2A)(4) – Extent of periods of time that the child shall spend with the mother.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT: Mrs Thompson

RESPONDENT: Mr Thompson

FILE NUMBER: SYF 4414 of 2005

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 2 & 3 March 2006;  1 June 2006;
14, 15 & 28 August 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms G O’Connor

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of New South Wales

COUNSEL FOR THE RESPONDENT: Mr P Cook

SOLICITOR FOR THE RESPONDENT: Wyatt Attorneys

Orders

1. That the father have sole parental responsibility for the child of the parties a daughter (“the child”) born in October 2000 subject to the mother having parental responsibility for the child during such periods of time that the child spends in her care.

2. That the child live with the father AND that the parties shall note the obligations created by this Order and the other parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.

3. That the parties ensure the child spends the following periods of time with the mother:

   (a)During school term each Tuesday and Thursday afternoon by the mother collecting the child from school or her place of sport or extra-curricular activities and the child remaining in her care until she is collected by the father from the mother’s premises between the hours of 5.00pm and 6.30pm in accordance with the verbal or written notice he has provided to her.

   (b)During school term each alternate Sunday from 11.00am until 4.00pm the first occasion to take place on Sunday, 18 March 2007 or as otherwise agreed upon between the parties.

   (c)During school holiday periods as agreed upon between the parties.

   (d)Such alternative or further periods of time as the parties may agree.

4. That the mother is restrained from consuming any alcohol or taking any illegal drug or substance for a period of 24 hours prior to the commencement of the time the child is due to spend time with her as well as throughout each of such periods.

5. That the mother may have telephone communication with the child whilst she is living with the father at such times or during such periods as are specified by the father to the mother.

6. That the father shall have telephone communication with the child during all periods that the child spends with the mother.

7. That each of the parties shall ensure that the other has his or her current landline or mobile telephone numbers and that the relevant telephone service is operative at all times.

8. That in the event of the child suffering a serious illness or injury whilst in the care of either of the parties then the party with whom the child is then living shall promptly inform the other party of the nature of the child’s illness or injury and the name and address of the relevant hospital or medical practitioner.

9. That the mother is restrained from engaging in any violent or abusive behaviour towards the father or from making any denigrating comments about him to or in the presence or hearing of the child.

10. Liberty to apply for an order to set aside, vary or suspend all or any of the parenting orders made this day upon three (3) days written notice being given.

11. That all documents produced on subpoena may be returned to the person who produced the same.

12. That the proceedings be removed from the Active Pending Cases List.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF4414 of 2005

MRS THOMPSON

Applicant

And

MR THOMPSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, parenting orders are sought by each of the parties in respect of their child a daughter (“the child”) aged 6 years having been born in October 2000.

2. The applicant mother sought orders in accordance with her Amended Application filed 10 August 2006.  In substance, the orders sought by the mother provided for the parties to have joint parental responsibility for the child;  the child spend time with the mother during school term from the conclusion of school to 6.00pm or 6.30pm each school day;  for one or more days of the weekend;  half school holidays (including several overnight stay-overs at times to be agreed between the parties);  as well as other specified occasions.

3. As the amended application makes clear, the mother consents to the child otherwise living with the father.

4. An injunction was also sought by the mother restraining the father from relocating with the child from Sydney.

5. During the course of submissions, counsel for the mother stated that the mother sought equal parental responsibility in accordance with the presumption that applies pursuant to s 61DA(1) of the Act.

6. The orders sought by the father, with one exception to which I will refer, are set forth in his Response filed 18 November 2005.  In substance, the orders sought by the father were that the child live with him;  that the father be permitted to relocate with the child to Darwin and other parts of the Commonwealth of Australia as a consequence of his current employment with the Australian armed forces;  and that otherwise the mother may communicate with and spend time with the child in Darwin and otherwise as agreed.

7. The father also sought an order that he have the sole parental responsibility for the child.

8. During the course of submissions, counsel for the father informed me that the father no longer sought an order that he be permitted to relocate with the child to Darwin as a result of having considered the evidence of the child expert, Der R, psychiatrist.  As a consequence, the father was no longer seeking a transfer within the Australian armed forces from Sydney to Darwin.

9. Counsel for the father also informed me that the orders now sought in relation to periods of time to be spent by the mother with the child were that such periods occur from 5.00pm to 6.30pm on Tuesdays and Thursdays as well as each Sunday from 11.00am to 4.00pm.

10. The parties married on 15 March 1997.  They gave contrary evidence as to whether cohabitation between them commenced on that date or in February 1997.  Sensibly, the matter was not explored as resolution of that fact did not have any relevance to the issues before me.

11. It is undisputed that the parties had a volatile relationship marked by a number of separations and reconciliations.  The father gave detailed evidence in that regard, which I accept, as it was not disputed.  Based on the father’s evidence, the longest period of cohabitation between the parties was from February 1999 until they finally separated on 4 August 2002.

12. The father is 49 years of age and is a member of the Australian armed forces.

13. The mother is 40 years of age and is a pensioner.

14. The mother has two sons from prior relationships, namely, W 23 years of age who lives in M and S who is 16 years of age who lives in N.

15. The father has two sons by a prior relationship, namely M who is 19 years of age and lives with him and another son C who is independent.

16. It appears that the marriage of the parties has not been dissolved absent evidence to the contrary.

Historical background

1. The following are further brief historical matters.

2. On 11 March 2002 in the Local Court S an apprehended violence order was made for the protection of the father and the child from the mother for a period of three months.

3. On 9 October 2003 in the Local Court K an apprehended violence order was made against the mother for the protection of the father, the child and others for a period of two years.

4. In February 2003 the father assumed full-time care of the child who has primarily lived with him since that time.

5. In January 2006 the mother was charged in relation to a stabbing incident involving her then partner Mr H and remanded in custody.

6. In March 2006 the mother was granted bail in respect of those proceedings.

7. On 7 June 2006 in the Local Court Gosford the charges against the mother were dismissed in the absence of Mr H.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

1. Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:

   “A Court must regard the best interests of the child as the paramount consideration.”

2. That provision is re-emphasised in section 65AA.

3. For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3).  In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects.  In substance, they include the benefit to the child of its parents having:

   “a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence;  ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”.  {emphasis added}

4. The principles underlying those Objects, in summary, include:

   (a)a child having the right to know and be cared for by both parents;

   (b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;

   (c)the joint sharing by parents of duties and responsibilities in relation to their child;

   (d)the imperative for parties to agree about future parenting of a child;  and

   (e)the child’s right to enjoy his or her culture including with others who share that culture.

5. It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred.  That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}.

6. I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[1]

   [1] B and B, ibid

Relevant matters pursuant to section 60cc

1. Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[2]  The exception is found in section 60(5) where an order is sought by consent.  For obvious reasons, that is not relevant in these proceedings.

   [2] Section 60CC(1)

2. The primary considerations are:

   “(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.”[3]

   [3] Section 60CC(2)

3. For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved.  That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.

4. Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings.  Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.

Views expressed by the child and other relevant factors

1. There was no issue that the child has expressed the view of wanting to continue to live with the father.

2. There had been controversy in the evidence of the views expressed by the child in the context of potentially moving with the father to Darwin.  However, that no longer became an issue as the father withdrew his application in that regard as earlier referred to in this Judgment.

3. The evidence of the Court appointed expert, Dr R as set forth in his Report which became Exhibit 3 was to the effect that the child expressed the view of wanting to continue to spend time with the mother.  The periods of time and frequency of those periods was not analysed in any detail in Exhibit 3.  This matter was not further explored during the course of Dr R’s oral evidence.  I accept Dr R’s evidence in this regard as well in general whether given in Exhibit 3 or orally, unless otherwise stated.

4. Dr R impressed me as having given detailed and thorough consideration of issues and conducted appropriate interviews.

5. The tenor of the evidence of the mother was that the child enjoyed herself in the care of the mother including some past overnight stays and accordingly it can be inferred the child has a view to continue to spend such periods of time with the mother.

6. The father’s evidence is that the child has specifically objected to spending overnight periods with the mother and in the past the mother herself has requested him to collect the child as the child would not go to sleep.

7. The father’s evidence also is that the child had objected to the mother pulling her hair which was denied by the mother.  The mother’s evidence was that in the course of brushing the child’s hair she had to do so more vigorously to remove knots.

8. I preferred the evidence of the father to that of the mother given that he has been supportive of the child spending periods of time with the mother despite difficulties he has encountered in dealing with her erratic behaviour.

9. The evidence of Dr R that the father is not a vindictive person and has taken a responsible approach to the issue of periods of time to be spent by the child with the mother which was highlighted in the course of submissions by father’s counsel during which I was informed that the father no longer pressed his application to relocate with the child to Darwin having considered the further oral evidence of Dr R.

10. By contrast, the mother has a history of erratic behaviour, gave contradictory evidence in relation to allegations of her past violent behaviour to the father as well as her excitable demeanour when giving evidence.

11. Accordingly, I find the child has expressed views of continuing to primarily live with the father and spend periods of time with the mother, although not necessarily overnight.

The nature of the relationship of the child with each of the parties and other persons

1. There was no controversy in the evidence or, indeed raised in the course of able submissions made by counsel for the parties, that the child has a loving relationship with each of the parties, although is primarily attached to the father consistent with Exhibit 3.

2. I also find that it is not a matter of controversy that the child has a fond relationship with the children of the parties from their past relationships.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

1. The factual issue that arises is in relation to the father’s approach to this matter given the restricted periods of time that he contends the child should be spending with the mother during the week and his opposition to any such period to include overnight at this stage.

2. The father’s evidence is that whilst he supports the child continuing to spend time with the mother it should be restricted to after school to 4.30pm or 6.00pm week days each week and a few hours on the weekend.

3. The father’s opposition to more extended periods of time is based on his contention that he does not want the child exposed to what he regards as the mother’s unacceptable conduct.  The father’s evidence is that the mother has had a propensity for violent or abusive conduct towards him including the use of foul language in the presence of the child, exacerbated by her consumption of alcohol, other substance abuse and otherwise she is a person who is at times emotionally unstable.

4. The father also relies upon the detailed evidence of the mother’s unacceptable behaviour in hospital, her psychiatric treatment and recommendation for therapy, the latter not having been submitted to by the mother despite recommendations from her past treating psychiatrist.

5. There is very detailed comprehensive and overwhelming evidence of the mother’s unfortunate violent and abusive behaviour towards the father and others including in hospital as well as having adversely been affected by the consumption of alcohol and use of marijuana.

6. There was little challenge to the father’s evidence in that regard given both in his primary affidavit as well as orally.

7. I accept the father’s evidence and make findings accordingly.

8. The evidence to which I last referred also includes the mother’s unacceptable language directed to the father at times in the hearing of the child.  Dr R’s diagnosis is that whilst the mother does not suffer from a psychosis, she does have a borderline personality disorder and may have difficulty in controlling her behaviour such as verbally abusive behaviour if she feels stressed.  As previously stated, I accept Dr R’s evidence.

9. I accept the evidence of the father to which I have referred as it was detailed, plausible and not the subject of any significant challenge either in the course of cross-examination or in the mother’s own oral evidence.

10. Accordingly, I find the father does have the requisite willingness and ability to encourage a close and continuing relationship between the child and the mother also exemplified by the withdrawal by him of his application for an order to enable him to relocate with the child from Sydney to Darwin.

11. I find that generally the mother has the willingness and ability to likewise facilitate and encourage a close and continuing relationship between the child and the father, subject to her lack of control at times of her own behaviour to which I referred which could only be distressing for the child and potentially impact in a stressful way upon the child’s relationship with each of the parties.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living

1. This issue only arises in the context of the extent of the periods of time that the child should spend with the mother.

2. I accept the evidence of Dr R that the hours involved should not be such that puts unnecessary stress upon the mother as this may lead to erratic behaviour by her.

3. There have been occasions in the past when the child has remained in the mother’s care overnight.  I also accept the evidence of the father that the child has indicated to him an unwillingness to spend time overnight with the mother.

4. Generally, it is not disputed that there is a beneficial likely effect of the child spending regular periods of time with the mother during the week as well as on the weekends.

5. In my conclusion, I will set out the determination of this issue and the reasons for it.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This issue no longer arises.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

1. There is no issue in relation to the father’s capacity to provide for all of the needs of the child.

2. So far as the mother is concerned, the real issue is her capacity to provide for the emotional needs of the child.

3. I accept the mother’s evidence that the child’s physical needs are catered for.  Further, that the mother does not deliberately pulls the child’s hair but rather there have been times in the past when she has had to brush the child’s hair forcefully because of knots.

4. In recent times, the mother has been caring for the child from after school until approximately 5.30pm or 6.00pm when the child is collected from her home by the father.  Whilst there has not been evidence of any problems that have arisen on those occasions that must be seen against a background of the mother’s emotionally fragile make-up and the relatively short period of the mother’s care of the child after school.

5. Accordingly, I find that the mother has a limited capacity to provide for the emotional needs of the child.

The maturity, sex, lifestyle and background of the child and with either of the parties

1. The evidence of Dr R, which I accept, is that the child has the maturity commensurate with a normal child of her age.  Other matters are not relevant.

The parental attitude of each of the parties

1. I find that the father has the appropriate parental attitude.  The father has ensured an appropriate, responsible, secure and stable environment for the child who he has been fully supporting in every way.

2. The mother’s parental attitude has been historically affected by alcohol, drugs and breast cancer, the latter now overcome.  The mother does have a need for ongoing therapy.

3. The mother has also engaged in violent and abusive behaviour towards the father to which subsequent reference will be made, which at times has resulted in an adverse environment so far as the child is concerned.  To that extent, it has not reflected well upon her parental attitude.

Family violence and family violence orders

1. There have been family violence orders to which earlier reference has been made.  Those orders were against the mother for the protection of the father and the child, as well as others.  The most recent of those orders has been for a term which has now expired.

2. The primary affidavit of the father provides details and comprehensive evidence of the mother’s violent conduct and abusive behaviour towards the father, at times in the presence of the child, as well as the mother’s violent and at times uncontrollable conduct to others.

3. I accept the evidence of the father in relation to those matters for the reasons previously given and make findings accordingly.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

1. Having regard to the evidence of the father and in particular the expert evidence of Dr R, which I accept, and in substance not denied by the mother, I find that the mother’s historic consumption of alcohol at times uninhibits her behaviour.

2. Consequently, I propose to make an order in accordance with the evidence of Dr R that the mother be restrained from consuming any alcohol or taking any illegal drug or substance for 24 hours prior to the child spending any time in her care and throughout the period that the child is in her care.  On the assumption that such an order will be complied with by the mother, it would then remove a serious factor which has contributed to her erratic and abusive behaviour in the past with the consequence of reducing the potential for the institution of further proceedings in relation to the child.

3. I also accept the evidence of Dr R that at the present time there is no reason why the child should not spend time with the mother unsupervised.  However, the periods of time in that regard should be such that can be well-managed by the mother without creating undue pressure upon her.

4. I have noted Dr R’s evidence that it is sensible for the mother to accept ongoing therapy from her past treating psychiatrist or another psychiatrist.  Dr R’s evidence, which I also accept, is that should the mother not engage in such therapy then there is an increased risk of her being unable to contain her behaviour.

5. Consequently, it is preferable for orders to be made for periods of time that the child may spend with the mother during the week during school term similar to that which currently exists supplemented by a further period of a few hours on a weekend.  Although, not necessarily each weekend given that it is likely to be in the child’s best interests for her to spend regular uninterrupted weekends during school term with the father.

6. I accept the submissions made by counsel for the parties that the mother care for the child overnight as agreed between the parties.

Conclusion

1. Earlier in this Judgment I set out the substance of each of the parties’ proposals for parenting orders in these proceedings.

2. It is apparent that the principal issues relate to whether the presumption for equal shared parental responsibility in accordance with s 61DA(1) should apply and the extent of the periods of time that the child should spend in the care of the mother.

3. I have determined that the presumption of equal shared parental responsibility will not apply in these proceedings on the basis that it has been rebutted due to violent behaviour by the mother towards the father in accordance with the findings of fact that I have made.

4. As is apparent from the recent amendments to the Act, and in particular s 60B(1)(b), the emphasis upon “the best interests” of the child as underpinning the principal amendments, the issue of family violence and the protection of a child from physical or psychological harm from being subjected to family violence apart from it also being a primary consideration for the purpose of determining the best interests of a child, elevates family violence very much to the forefront for the purpose of orders that may be made when considering a child’s best interests in accordance with s 60CA.

5. Accordingly, I find that the presumption does not apply in accordance with s 61DA(2)(b).

6. In addition, I have also concluded that the further ground for rebuttal of the presumption has been established, namely that I am satisfied that it would not be in the best interests of the child for the parties to have equal shared parental responsibility.

7. In that regard, I have given weight to the sole role that the father has played in the primary care of the child including her financial support since February 2003 when the child was not quite 2 ½ years of age.  The father has carried out that role responsibly and in a child focused way.  Further, on the evidence before me, all decisions that the father has made in that regard have been for the child’s benefit.

8. The mother was unable to participate in the primary care of the child for significant periods of time since February 2003 due to her range of health issues, hospital and medical treatment including psychiatric treatment and being in custody following criminal charges against her.

9. It is clear to me the father can be relied upon to carry out the sole parental responsibility for the child in a manner which best suits the child in the future.

10. Consequently, the ground in s 61DA(4) has been established.

11. I have also determined that the parties shall ensure the child is in the care of the mother during school term each Tuesday and Thursday from the conclusion of school or her sport or extra-curricular activities between 5.00pm and 6.30pm in accordance with verbal or written notice provided by the father to the mother as well as on alternate Sundays from 11.00am to 4.00pm during school term.  Other periods of time may also occur as agreed between the parties.

12. My reasons are set forth in the following paragraphs.

13. The findings of fact made by me demonstrate that whilst the mother has provided care for the child after school for various weekdays during school term, as well as occasionally overnight, that has to be seen against a background of the mother’s serious psychiatric issues and historic propensity for consuming alcohol and/or taking illegal substances which have had an adverse effect upon her conduct.  At times such conduct has been violent and abusive towards the father, regrettably on occasions in the presence of hearing of the child.

14. As Dr R emphasised, the father has maintained a positive and constructive approach to arrangements for time to be spent by the child with the mother, albeit on occasions to meet his employment responsibilities.  Nonetheless, the father has done so in a responsible way which other parents may not have done if they had been on the receiving end of the type of behaviour that the mother has engaged in towards the father.

15. I am satisfied the father has been a responsible parent throughout.  At possible lessening of career opportunities for him in the Australian armed forces and after consideration of the further oral evidence of Dr R, the father commendably informed me through his counsel that he no longer sought an order which would permit him to relocate with the child to Darwin.  That ensured the relationship between the mother and the child could continue on a face-to-face basis without the obvious difficulties which would otherwise arise should the father live with the child in Darwin and the mother remain living in Sydney.  The father is to be commended for his approach in that regard and hopefully that is or will be recognised as such by the mother.

16. Consequently, the order that I will make for periods of time to be spent by the child with the mother will largely reflect the proposal of the father, except that the period of time will commence from after school rather than from child care later in the afternoon as the mother had demonstrated in recent times leading up to the conclusion of the evidence that she was providing appropriate care for the child.

17. Given that the father is in full-time employment in the Australian armed forces whilst the child is at school, I have concluded that it is in the child’s best interests in continuing to have the opportunity for a meaningful relationship with each party that the father have an uninterrupted alternate weekend during school term during which the child will be in his care.  Otherwise, the child will spend each alternate Sunday during school term from 11.00am until 4.00pm with the mother, which largely reflects the approach taken by each party in the course of counsel’s submissions.

18. So far as school holiday periods and special occasions such as birthdays and Christmas, I will leave that matter to be the subject of agreement between the parties.  For the reasons previously given, the father has shown himself to be a very responsible parent, he has been willing and facilitated the relationship between the child and the mother.  There is no reason why he cannot be relied upon to do so in the future.

19. The mother will need to realise that it is not only very much in her own personal interest but that of the child that she no longer procrastinate in following the medical advice she has received, supported by Dr R, that she undergo appropriate therapy from a psychiatrist to improve her mental health and the manner in which she can control her behaviour and lead a more healthy lifestyle.

20. The mother needs to take responsibility for pursuing that course.  Otherwise, as Dr R emphasised, there is the continuing potential for lack of control of the mother’s unfortunate behaviour towards the father which may then make it no longer desirable for the child to spend the periods of time with her which will be reflected in the orders made, or indeed at all.

1. Consequently, I will grant liberty to apply for an order by either party which will enable an application to be made on three (3) days written notice for setting aside, varying or suspending all or any of the parenting orders that will be made.

2. I will make appropriate orders which are not controversial to ensure telephone communication between the child and each of the parties when the child is in the care of one or the other.

I certify that the preceding One hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  14 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as THOMPSON & THOMPSON