Thompson and Thompson
[2011] FMCAfam 837
•21 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMPSON & THOMPSON | [2011] FMCAfam 837 |
| FAMILY LAW – Interim parenting – allegation of coercive and controlling violence not established – Family Violence Best Practice Principles. |
| Family Law Act 1975, s.60CC(3)(m) |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR THOMPSON |
| Respondent: | MS THOMPSON |
| File Number: | SYC 3522 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 July 2011 |
| Date of Last Submission: | 20 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Stidwill Solicitors |
| Counsel for the Respondent: | Ms Cotter-Moroz |
| Solicitors for the Respondent: | Lyndal Gowland & Associates |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child [X] born [in] 2008.
The Child live with the Mother.
The Child spend time and communicate with the Father as follows:
(a)On the first and third weekend of each month, from 2:30pm on Thursday to 2:30pm on Sunday, with changeover to occur at [W] Railway Station;
(b)On the second weekend of each month in the [B] region, from 4:00pm on Friday to 4:00pm on Sunday, with changeover to occur at the [omitted] Station in [O].
(c)From 2:30pm on Thursday 28 July 2011 to 2:30 on Sunday 31 July 2011, with changeover to occur at [W] Railway Station.
(d)On the Mother’s Day weekend, the Father’s time is suspended;
(e)On those days that the Child is living with the Mother, the Child is to have:
(i)Telephone communication with the Father for up to five minutes on Tuesdays and Thursdays between 5:00pm and 6:00pm, with the Father to telephone the Child on the telephone number nominated by the Mother and the Mother shall ensure that the Child is available to speak with the Father on each of these occasions;
(ii)Communication with the Father via Skype for up to 5 minutes on Sundays between 9:00am and 9:30am or between 6:00pm and 6:30pm, with the Father to initiate the Skype communication at the email address nominated by the Mother and the Mother shall ensure that the Child is available to speak with the Father on these occasions.
(f)On those days that the Child is spending time with the Father, the Mother is to have telephone communication with the Child on Friday between 9:00am and 9:30am, with the Mother to telephone the home of the Paternal Grandparents and the Father to ensure that the Child is available to speak to the Mother.
For the purposes changeover in accordance with Order 3(a) and 3(c) above:
(a)The Father is to send the Mother a text message notifying her of the Child’s safe arrival in Sydney on Thursday afternoon;
(b)The Mother is to send the Father a text message notifying him of the Child’s safe arrival in [O] in Sunday evening.
The Mother will reimburse the Father for half of the reasonable costs of his accommodation during the weekend that he spends time with the Child in [O].
Both parents are restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child;
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.
Both parents shall:
(a)Keep the other parent advised, by email or text message, of their current residential address and contact telephone numbers (including landline) and email address and advise the other parent of any change to these details within 48 hours of such change occurring;
(b)Notify the other parent as soon as practicable if the Child suffers an accident, injury or illness or emergency that requires medical attention, and provide details of that event including the name of the treating doctor;
(c)Provide to the other parent a monthly update on the Child’s care, which can include drawings, photographs and other events of significance, including milestones achieved by the Child during that month;
(d)Notify the other parent via email or text message, details of any prescription or over-the-counter medication that they have administered to the Child on the day that the Child is to go into the care of the other parent, including details of any medication that is to be given to the Child whilst in that parent’s care;
Each parent is entitled to obtain directly from any educational, health or welfare agency or any other professional involved in the care of the Child all information, including copies of any reports, notices or any other relevant verbal or written advice affecting the education, health or welfare of the Child and for this purpose, each of the parents are to notify the other by email or text message of the names and contact details of any relevant educational, health or welfare professional so involved in the welfare of the Child.
In the event that it is necessary for either parent to secure the consent of the other parent to the provision of information pursuant to the preceding order, they must post the form of authority together with a stamped return addressed envelope to the other parents, and that parent must sign and return that form by post.
THE COURT ORDERS BY CONSENT THAT:
Pursuant to Part 15 Rule 9 of the Federal Magistrates Court Rules, that Dr W be appointed as Single Expert Witness (hereafter referred to as “the Expert”) to enquire into and report upon matters relating to the welfare of the child and that in preparing this report to the court, to consider the following matters:
(a)Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;
(b)any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship of the child with each of the child's parents and any other relevant person;
(d)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(e)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;
(f)the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;
(g)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);
(h)The effect on the child of any family violence to which they may have been exposed;
(i)The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
(i)Implement such an arrangement; and
(ii)Communicate with each other and resolve difficulties that might arise;
(j)The mental state of both parents in so far as it relates to parenting issues;
(k)The Expert’s opinion concerning any allegations of abuse of the child; and
(l)Any other matter the expert considers relevant.
I DIRECT that, upon completion, the expert report be forwarded to my Associate by email to [omitted].
Both parties will share equally the costs of Dr W’s Report.
THE COURT FURTHER ORDERS THAT:
The Mother must within 14 days contact Centacare [B] on [telephone number omitted] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a Parenting After Separation Program
The Father must within 14 days contact Relationships Australia on [omitted] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a Parenting After Separation Program.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to the above organisations and must attend the intake appointment at any reasonable location nominated and complete the assessment.
If assessed as suitable and the above organisations nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
The matter be set down for a two day Final Hearing commencing
24 April 2012 at 10:00am.The parties file and serve any further material on which they seek to rely no later than 3 April 2012.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
No later than three working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing.
The matter be adjourned to 21 November 2011 at 9:30am for Mention. The parents must attend with their legal representatives if the Expert’s Report is available.
Leave be granted to the Mother to attend by telephone on the next occasion, provided she contacts my Associate on [omitted] or [omitted] no later than 7 days before the Mention to provide a contact telephone number.
Leave be granted to Applicant solicitor and the Respondent solicitor to issue more than five subpoena.
IT IS NOTED that publication of this judgment under the pseudonym Thompson & Thompson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3522 of 2011
| MR THOMPSON |
Applicant
And
| MS THOMPSON |
Respondent
REASONS FOR JUDGMENT
In the matter of Thompson, I provide the following oral reasons relating to an application that I heard yesterday. This case is about [X], who is two years old and will turn three in September. His father is the applicant. He is 31 years old and lives with his parents in [H], a northern Sydney suburb, and is currently unemployed. [X]’s mother is the respondent. She is 30 years old, lives in [O] and is a [occupation omitted]. The parents separated in circumstances where the mother and [X] left what was until then the former matrimonial home on the [G] in March 2011, moving to [O], where she gained employment.
The father consequently moved to Sydney. The family had moved around before living at the [G]. The mother has family in [O]. It is clear from both accounts, that is, the mother and father’s account of the relationship, that they had some difficulties, though it seems that the final separation was probably more of a surprise for the father than for the mother. It seems common ground that there was little, if any contact between [X] and his father between the date of separation and the date of making interim orders on 4 July 2011.
Whether or not the mother facilitated contact in this period is a matter for the final hearing and not one for interim proceedings. I made orders on 4 July 2011 which provided, in effect, for [X] to spend time with his father each weekend from Thursday to Sunday with changeover to occur halfway between [H] and [O]. Both parents have different versions of how [X] is coping with this contact regime. I can make no findings in this regard. I make this observation: the orders of 4 July 2011 were made on very limited information, and their primary focus was to re-establish contact between the father and [X]. I do not in any way feel bound by the orders that I made on that date.
The issue before the Court on an interim basis is what contact arrangements in the circumstances of this case are in the best interests of [X]. The competing proposals are as follows. The father’s is contained in a minute of order which I incorporate into these reasons. In effect, the father seeks shared care amounting to about 10 days each four weeks in seven and three-night blocks. I note the father also proposes that Dr W be appointed as a Part 15 Expert. This is consented to by the mother, and I will make that order by consent.
The mother’s proposal is contained in the annexure B to her response, and again, I incorporate this into my oral reasons. She proposes equal shared parental responsibility, that [X] lives with her, and just interposing, I note that this part of the order is not opposed, and I intend to make orders to this effect. She proposes contact three times each month: twice in [B], once in Sydney. There would be overnight time in [B] and overnights Thursday to Saturday in Sydney. The mother proposes that the extended overnight time in Sydney be at the home of the paternal grandparents, however, I note there are no restrictions on contact when in [B].
The evidence before me consisted of the affidavits of the father. There have been two affidavits: one filed 9 June, another filed 18 July. There is the affidavit of the mother filed 19 July and an affidavit of Ms T, the mother’s sister, also filed on that date. In evidence there was the family consultant memorandum to Court as well as various documents tendered and which became exhibits, the most important of which were documents produced by New South Wales Police.
The applicable law is contained in Part VII of the Family Law Act, and the Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides a very helpful template for dealing with these cases. I propose to approach the evidence and the submissions by reference to the section 60CC considerations. I start with exploring the question of the child’s meaningful relationships and the nature of the child’s relationships generally. Implicit in the mother’s proposal and explicit in the father’s proposal and in their respective affidavits is the fact that both parents have a meaningful relationship with [X]. It is clear that the mother was the primary carer, a responsibility that she seems to have balanced with her own career successfully.
It is equally clear, even on the mother’s own evidence, that the father was actually involved in [X]’s life, and there have been periods when he has been solely responsible for [X]’s care. There is nothing in the mother’s material that suggests anything to the contrary. [X] has a meaningful relationship with his father. The challenge now is how to sustain that over a long distance with [H] to [O] being at least four hours by car each way.
The meaningful relationship must take into account not only the practicalities of the parent but the developmental needs of a young child. This involves frequent contact with each parent and avoiding long absences of any parent from [X]’s life. I am satisfied, in fact, that both proposals will sustain the father’s meaningful relationship with [X], but the mother’s proposal is, in my opinion, an absolute bare minimum. If I accept her proposal, it would have to be justified by other considerations than the present one. I am not prepared to find on the evidence before me that there is anything at all that is inappropriate about the father’s relationship with his son, as is asserted at least implicitly by the mother.
I turn now to consider issues of protecting [X] from harm, abuse, family violence and family violence considerations generally. There is no evidence before me that [X] needs to be protected from abuse or neglect. The mother’s case, at its highest, is that he has been exposed to family violence. The mother’s case is that she has been subjected to family violence. Indeed, her counsel articulated this as coercive and controlling violence. I will need to deal with this submission and explore its relevance in the present context.
The mother’s evidence in this regard is set out in a comprehensive fashion at part 9 of her affidavit, which consists of 39 paragraphs under the following headings: Physical Assaults, Controlling and Coercive Behaviour, which has a number of subheadings: Manipulation, Blaming, Undermining My Relationship With My Family, Intimidation, Criticism and Undermining, Other Controlling Behaviour, and Temper. I must record that I found the way in which this evidence was organised to be extremely helpful. Collecting evidence under specific subheadings made the evidence much easier to assess and access. The draftsperson was clearly familiar with the typologies of family violence and may well have been influenced in the drafting of the affidavit by the Family Violence Best Practice Principles, a publication of the Family Court of Australia and the Federal Magistrates Court of Australia.
I presume the submission of coercive and controlling violence was based on the collective evidence set out in the affidavit. As it turns out, however, I do not accept the submission, and I will set out my reasons for doing so. I do not wish to detract or discourage in any way, however, any future attempt in other cases to systematically set out the evidence, as this case did, but in an appropriate case. As I say, I think this is just not an appropriate case.
Evidence about the physical assaults indicates a very low level of potency, even on the wife’s own evidence. Now, I have used the term “potency” in the same way as potency is described in the Family Violence Best Practice Principles, and specifically here, I refer to the three factors that are explored at pages 13, 14 and 15 of the said principles. The first of those principles is described as the potency of violence, that is, the level of severity, dangerousness or the risk of lethality, and I will set out those in the written reasons.
There was one incident that occurred three years ago. The relationship continued, and the mother was clearly content to leave [X] in the father’s care afterwards. I do not condone the father’s actions if, in fact, they occurred, but with respect, even if the mother’s case were accepted about the incident, it hardly establishes the pattern of physical assault. As for the second physical assault alleged on 4 March, there are two major considerations. Firstly, when it is seen in context, it is what is described in the Family Violence Best Practice Principles as separation-instigated violence with no pattern and low potency. Secondly, the COPS entries in evidence really cast doubt on the mother’s version of events as to the father grabbing her wrist and holding it tightly. The COPS entry is based on the mother’s own representations to police and presents a very different picture of the event to that which she portrays in the affidavit, and the COPS entries certainly present a more benign perspective. Now, I can make no findings about this incident. I am satisfied, however, that the allegation of physical assaults do not sustain a submission of coercive and controlling violence and that there is a low potency and, in any event, absence of a pattern.
In relation to the mother’s allegations about manipulation, blaming, undermining of the relationship, intimidation, criticism and so forth, I think these allegations suffer from the same problem. Firstly, there is low potency. By this, I mean as follows: I doubt, with respect to the draftsperson of the affidavit, that the behaviour described at paragraphs 9.6 to 9.12 amounts to manipulation in the context of the parties’ relationship. The same could be said for blaming. There is no suggestion of the mother being isolated from her family, so it is hard to see how her relationship was undermined. Much of what the mother describes in her affidavit is relatively benign and, one would have thought, not uncommon in the community of people who come to the Family Law Courts.
I am not condoning any of the father’s actions if that is what he in fact did. What I am saying is that it is not coercive or controlling violence, as was submitted. In any event, the issue here is not whether the father’s actions fall within the present or, interestingly, any future definition of family violence, because it is still conduct that I can take into account under section 60CC subsection (3) paragraph (m), but I think rather the issue is even if I accepted that this conduct occurred at an interim level, would it make any difference on the facts of this case? The issue is whether any of this evidence makes a difference in the context of the competing proposals as were put by the parents, given what I have described as low potency and the absence of a pattern.
The answer is, in my opinion, no. Even if I were to accept the mother’s evidence at its highest in the context of this case, the age of the child and the mother’s own proposals, it simply does not make a difference. It does not inform a decision about how much contact the father has with [X]. It may well be that the situation will be different at a final hearing.
Another consideration is the views of the child: that is obviously not a factor in this case. An issue that has arisen in submissions implicitly is the willingness of parents to facilitate relationships, but as I have indicated, I think this is a matter for a final hearing. The father asserts there was a lengthy period of no contact from the date of separation to the date of interim orders, and that raises issues in relation to the mother. The mother has an explanation. I cannot make any finding at this time.
One of the issues is the likely effect of change. [X] has already been exposed to far too much change in his life. I would like to minimise this now. I would like to implement a stable, predictable plan for him to spend time with his father which creates minimal further disruption to his young life. This will, regrettably, involve further change. Both parents seek to change the current interim arrangement. I agree it is necessary. It has served its purpose. Contact has been re-established. Given the distance between the parents, the order I made cannot be continued. It is far too taxing for [X] and, indeed, for his parents. Other considerations will ultimately inform the most appropriate order.
There is an issue of practical difficulty and expense. As I have already indicated, the tyranny of distance is a real issue in this case whichever proposal is adopted. The orders need to reflect this problem. This factor indicates that the frequency of travel should, if possible, be minimised. The father’s proposal involves travel each fortnight to Sydney. The mother’s proposal involves travel to Sydney once per calendar month and travel to [B] on one other occasion per month. The attraction of the contact in [B] is that it reduces the burden of travel on [X]. Of course, it imposes a burden on the father which is only mitigated but not avoided by the mother’s proposal to pay half the cost of accommodation.
Another consideration is parental capacity. Both parents raise issues about each other’s mental health. The mother, in particular, raises issues about aspects of the father’s behaviour and personality. By consent, Dr W will prepare a report. Obviously, I can make no findings. Suffice it to say that on the material before me, I can see no evidence of any lack of capacity by any parent. This is a matter for a final hearing with the benefit of expert evidence. On the material before me, I have no concerns about either the mother or the father’s capacity to care for [X]. I specifically see no reason for the father’s time with [X] to be in the presence of his own parents. In terms of capacity, both parents would benefit from a parenting course, and I will include this in my orders.
Another issue is the maturity of the child. I regard this as probably the single most influential consideration. [X] is not yet three years old. He is at a critical stage of his development where he needs to consolidate attachments to the key people in his life, that is, his mother and his father. His ability to tolerate long absences from either is still limited. There is evidence given by both parents in their affidavits that suggests that [X] is struggling with absences from both parents.
The father does not contest that [X] should live with his mother. I think this is an appropriate and at least implicit recognition that the mother is his primary attachment figure. This means absences from her care should not be for long periods. That is why I do not accept the father’s proposal for a seven-day block. That is not in [X]’s best interests. However, he must spend regular time with the father, which is what makes the mother’s proposal so attractive except insofar as the duration of contact, which I regard as too short. Obviously, this needs to be balanced against the practical difficulties associated with travel over long distances.
Another consideration is the attitude of the parents. This is a matter for final hearing. I make this observation, however: this is a recent separation under emotional circumstances where the father is still struggling to come to grips with the end of the relationship. I observe that not much clear thinking has been going on on the part of either the mother or the father. I trust that will improve as time goes by, as the issue of parenting orders is resolved on an interim basis and as the parties hopefully benefit from a parenting course.
Having regard to those matters, what is the order in the best interests of the children? As I will make an order for equal shared parental responsibility, I need to consider equal time. It is not appropriate and was not proposed. Substantial and significant time is attainable in either proposal. Balancing all of the considerations, I intend to make orders to the following effect in relation to contact: on the first and third weekends of the month, the father is to have contact from 2.30 Thursday to 2.30 Sunday with changeover to occur at [W] Railway Station, a place which I accept is about halfway. This reduces travel for [X] to four trips a month.
On the second weekend, the contact can be in [B] from 4 pm on the Friday to 4 pm on the Sunday. The mother is to reimburse the father
50 per cent of the reasonable cost of his accommodation when he travels for the purpose of this contact. On the fourth and the fifth weekend of the month, where that occurs, there will be no contact. This gives [X] a rest from travel and the opportunity to spend weekend time with his mother. This is the best the Court can do to provide regular contact without imposing significant travel for [X].
One of the issues is telephone contact. I must say I regard telephone contact at [X]’s age as somewhat problematic, and I propose to accept the mother’s proposal in this regard.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 25 August 2011
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