THOMPSON & THOMPSON
[2014] FamCA 586
•28 July 2014
FAMILY COURT OF AUSTRALIA
| THOMPSON & THOMPSON | [2014] FamCA 586 |
| FAMILY LAW – CHILDREN – Undefended – Where the mother failed to participate in the hearing – Where the child lives with the father and both parties seek that the child continue to live with the father – What time the child should spend with the mother and whether such time be subject to any conditions –Whom should have parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN(7) |
Family Law Rules 2004 (Cth) r 16.07
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| APPLICANT: | Ms Thompson |
| RESPONDENT: | Mr Thompson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown |
| FILE NUMBER: | PAC | 4928 | of | 2012 |
| DATE DELIVERED: | 28 July 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 June 2014 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Carlisle Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown |
Orders
That all previous parenting Orders with respect to the child, B, born on … 2005, be discharged.
That the father have sole parental responsibility for the child provided that the father is to keep the mother informed of all major decisions that he makes in relation to the child and actively seeks the mother’s input on such issues.
For the purposes of the previous Order, before any long-term decision is made in respect of the child:
(a)the father shall advise the mother in writing as to any decision that is to be made, including the nature of that decision and the reason for it, and invite the mother to make a response to the matters raised in that written notice, including whether she agrees, and if she does not, reasons for her disagreement;
(b)if the mother wishes to comment on the father’s proposal (or if the mother has any proposal she wishes to make relating to the child on this issue), she shall within fourteen (14) days after the date of the father’s written notice advise the father in writing (to the address from which the father sent his written notice) of her views;
(c)upon receipt of any written response from the mother, the father shall give consideration to her comments or proposal;
(d)after the father has considered the mother’s comments or proposal, he shall make a decision and provide the mother with written notice of the decision that is ultimately made;
(e)if the mother does not respond as provided for herein, the father shall be entitled to presume that the mother does not wish to be involved and he may decide upon the issue; and
(f)that, for the purposes of this Order, notice may be given in writing, by email or SMS communication.
That the child live with the father.
That the child spend time with the mother as follows:
(a)in the event that the mother lives within fifteen (15) kilometres of the school which the child from time to time attends, the child shall spend time with the mother during the school term from the conclusion of school on Friday to the commencement of school on Wednesday in each alternate week, commencing on the first weekend after the resumption of school in each term;
(b)in the event that the mother lives more than fifteen (15) kilometres from the school which the child from time to time attends, the child shall spend time with the mother during school term from the conclusion of school on Friday until the commencement of school on Monday in each alternate week, commencing on the first weekend after the resumption of school in each term;
(c)for one (1) half of the school holiday periods, being the first half in each even-numbered year and the second half in each odd-numbered year, and for the purposes of this Order, school holidays shall commence at the conclusion of school on the last day of term and end at the commencement of school on the first day of the new term;
(d)on Mother’s Day weekend from the conclusion of school on Friday to the commencement of school on Monday in the event that the child is not otherwise spending time with the mother provided always that the mother’s time with the child, if any, on the Father’s Day weekend shall be suspended from after school Friday until the commencement of school on Monday; and
(e)at such other times as the mother and father may reasonably agree in writing with such writing to include SMS or email communication.
That the mother be permitted to attend on such events or occasions relating to the welfare of the child, being occasions relating to education, sport, religious education, extra-curricular activities, or such other occasions significant to the welfare of the child, being occasions where the attendance of either or both parents is to be reasonably expected.
That for the purposes of changeovers, the mother is to collect the child from school at the commencement of his time with her and return the child to school at the conclusion as such time, where appropriate, and in the event that changeovers are to occur on a day that is not a school day, changeovers shall be facilitated by the mother collecting the child from the father’s residence at the commencement of such time and the father collecting the child from the mother’s residence at the conclusion of such time.
That within fourteen (14) days from the date of these Orders the father is to do all acts and things necessary in order to have the child re-engage with the C Program at D Org, E Town, including, but not limited to, attending any intake or assessment required and thereafter:
(a)present the child for all appointments as scheduled by D Org until such time as the child has successfully completed the program and the father’s informed by D Org that no further attendances are required;
(b)comply with all reasonable requests or directions of the staff of D Org, including referrals to any other professionals; and
(c)complete any after-parenting-separation program, such as the F Program, recommended by D Org.
That the father is hereby restrained by injunction from:
(a)attempting to impose any limitations on the way in which D Org provide services to the child or otherwise interfere with the provision of such services;
(b)seeking or attempting in any way to limit the mother’s involvement in the C Program if she is requested to do so by D Org and/or otherwise preventing the mother from obtaining information or engaging with the staff of the program with respect to the child.
That in the event that D Org is not prepared to facilitate the child re-engaging with the program at D Org and has advised the father to that effect in writing then the father shall:
(a)within seven (7) days of that written notice, or as soon as practicable thereafter, facilitate the child’s attendance upon Ms G, psychologist at the H Clinic and advise the mother in writing of him so doing;
(b)present the child for all appointments scheduled by Ms G until such time as the father is informed by Ms G that no further attendances are required;
(c)comply with all reasonable requests or directions given by Ms G, including referrals to any other professionals; and
(d)for the purposes of this Order, the Independent Children’s Lawyer is granted leave to provide to Ms G a copy of the Family Consultant’s Memorandum dated 17 December 2012, the Family Report dated 28 November 2013, Reasons for Judgment of Judge Donald dated 12 April 2013 and a copy of the Reasons for Judgment in respect of these Orders.
That the father do all necessary things and sign all necessary documents to provide any necessary authorities and consents to any school which the child may attend from time to time to enable the mother to obtain such documents and/or information about the child’s attendance and progress as is generally made available to parents and that, for the purpose of these Orders, this Order shall be deemed sufficient authorisation for the mother to obtain such information or documentation.
That the father is to, in a timely fashion:
(a)provide to the mother written notice of any doctor, dietician, counsellor, mental health practitioner or other specialist attended by the child from time to time;
(b)do all necessary things and sign all necessary documents so as to provide any necessary consents or authorities to enable the mother to liaise with the person or service in order that the mother may contact that personal service directly and obtain from them any information whatsoever that she may reasonably require with respect to the child;
(c)for the purposes of this order notice shall be in writing and may include SMS or email communication; and
(d)for the sake of clarity, the mother is at liberty to arrange an appointment for herself with any such health professional for the purposes of discussing the child’s welfare.
That within fourteen (14) days from the date of these Orders, the father is to notify the mother in writing of the name of the child’s general practitioner and that practitioner’s contact details and is to notify the mother thereafter and within seven (7) days should there be any change to the general practitioner attended by the child, and for the purposes of this Order, such notification may be by SMS or email communication.
That the mother is hereby restrained by injunction from taking the child to any doctor, dietician, counsellor, mental health practitioner or other specialist whilst the child is in her care, save and except:
(a)where the father has been given prior notice in writing of such appointments and his consent has been obtained;
(b)in circumstances of an emergency; or
(c)where the child is unwell and requires attendance upon a doctor, in which case the mother shall take the child to the child’s nominated general practitioner, and if that general practitioner is not available, another doctor in that surgery.
That the mother is hereby restrained by injunction from consuming any illegal or illicit substance or the overuse of prescribed medication whilst the child is in her care or within the twelve (12) hour period prior to the child coming into her care.
That the mother and father are hereby restrained by injunction from:
(a)using physical discipline with respect to the child;
(b)making any critical or negative remarks about the other parent and/or members of the other parent’s family and/or the other parent’s friends to the child or in the presence or hearing of the child;
(c)discussing with the child in the presence or hearing of the child these Court proceedings or any issue in dispute between the parties; and
(d) passing information to each other via the child.
That the mother and father shall do all things reasonably necessary and use their best endeavours to ensure that no other person:
(a)makes any critical or negative remarks about the other parent and/or members of the other parent’s family and/or the other parent’s friends to the child or in the presence or hearing of the child; and
(b)discusses with the child or in the presence or hearing of the child these Court proceedings or any issue in dispute between the parties.
That the mother and father shall do all things necessary and take all reasonable steps to keep the other parent informed promptly in writing, SMS or email communication of:
(a)any significant medical problems or illness suffered by the child whilst in their care;
(b)any occasion that the child is due to be hospitalised or has been hospitalised;
(c)any medication and/or diet prescribed for the child that will require the other to administer, such medication, or adhere to such diet;
(d)their residential address, current telephone numbers, including both landline and mobile if applicable, and email address, if any, and any changes in those details.
That the Order for the appointment of the Independent Children’s Lawyer dated 5 November 2012 be discharged.
That the costs of the Independent Children’s Lawyer be reserved, noting that costs in the sum of $5,763.50 are sought from each party by the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Thompson 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 PARRAMATTA |
FILE NUMBER: PAC 4928 of 2012
| Ms Thompson |
Applicant
And
| Mr Thompson |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
These are parenting proceedings in relation to the child, born in 2005, now 8 years of age.
The child presently lives with the Respondent father and spends defined time with the Applicant mother.
These proceedings have had a long history and property proceedings between the parties await listing for hearing and final determination.
The mother is presently aged 44 and the father is aged 42. The parties commenced cohabitation in 2004 and were married in 2006. The parties finally separated in late October 2012 following various periods of previous separation.
The child is the only child of the parties’ relationship. The child has a half-sister Ms J, who is the mother’s daughter from a previous relationship. Ms J is now 18 years of age and is residing with the Respondent father in these proceedings.
On 11 April 2014 the mother filed an Amended Application in these proceedings and, in summary, sought the following orders:
a)that the parties have equal shared parental responsibility for the child;
b)that the child live with the father; and
c)that the child spend time with the mother during school term on alternate weekends from Friday after school until before school the following Wednesday, for half of the school holiday periods and for specific periods on Mother’s Day, the child’s birthday and during the Christmas festive period.
On 23 January 2014 the father filed an Amended Response and, in summary, sought the following orders:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father; and
c)that the child spend time with the mother during school term on alternate weekends from after school Friday to 6.00 pm Sunday, for half of the school holidays and for specified time on Mother’s Day, the mother’s birthday, the child’s birthday and during the Christmas festive period.
Accordingly, the primary issues for determination by the Court are:
a)What are the best interest considerations in respect to the child B?
b)Who should have parental responsibility for the child?
c)What orders should be made as to the child’s time with the mother?
d)Should the child’s time with the mother be subject to certain conditions?
The father presently resides with the child at Suburb I, just North of Sydney. The child Ms J also resides with the father and his present wife in the home.
The parties had previously separated in about February 2010. At that time the father and the child moved to the father’s parents’ home at Suburb K in Sydney. The child Ms J remained residing with the mother at the former matrimonial home at Suburb I.
In November 2010 the father and the child resumed living in the home at Suburb I. The parties then remained together until their final separation in October 2012.
The child had attended Suburb I School since commencing his formal school education.
On 24 September 2012, prior to separation, the mother made a complaint to police resulting in an apprehended violence order being sought for the protection of the mother against the father. On final hearing of that application on 7 November 2012 that application was dismissed.
On 21 October 2012 an incident occurred at the home at Suburb I during which the mother stood on the child, pinning him to the ground. The father lifted the mother off the child and in doing so was struck by the mother across the face. During the incident the mother also struck the child Ms J across the face. The police attended at the home following this incident and the mother was restrained by police officers, handcuffed and removed from the home.
This incident resulted in a Final Apprehended Domestic Violence Order being made, on application by the New South Wales police service for the protection of the father against the mother, on 12 September 2013 for a period of 12 months. In respect of the father, the conditions of the Order are, in summary, as follows:
a)that the mother not assault, molest, harass, threaten or otherwise interfere with the father or a person with whom the father has a domestic relationship;
b)that the mother not engage in conduct that intimidates the father or a person with whom he has a domestic relationship;
c)that the mother not stalk the father or a person with whom he has a domestic relationship;
d)that the mother not approach contact or telephone the father by any means whatsoever, except through the father’s legal representatives or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 (Cth) as to counselling, conciliation or mediation, or in order to facilitate contact with the child.
Subsequently, on 12 September 2013 the mother was convicted of common assault on the child Ms J and assault occasioning actual bodily harm on the father. The mother appealed those convictions to the District Court of New South Wales and the outcome of those appeals is not known.
On 2 November 2012 the father commenced proceedings in the Sydney Registry of the then Federal Magistrates Court of Australia. On the same day the mother commenced proceedings in the Parramatta Registry of that Court and the mother’s application was first listed before the Court on 5 November 2012. On that day an Order was made for an independent children’s lawyer to be appointed to represent the interests of the children the child and Ms J.
On 9 November 2012 the Court made Orders that the child Ms J live with the paternal grandparents. Thereafter, following an interim hearing, the Court relevantly ordered that there be no further orders in relation to the child Ms J and that the child live with the mother and that the child spend defined time with the father. It was noted on that day that the father would do certain things to facilitate the mother obtaining rented premises for the accommodation of herself and the child.
In late March 2013, without the father’s consent, the mother removed the child from his school and transferred the child to L School. Until 24 April 2013 the father had no face-to-face time with the child and had only been able to speak to him on three occasions by phone. The mother’s actions precipitated the father filing an interim application for urgent orders on 27 March 2013.
Since the parties had separated, the father had no occasion to take the child to a medical practitioner. However, in the period from November 2012 until April 2013 the mother had caused the child to attend upon medical practitioners on 27 occasions. This caused the father some concern.
On 12 April 2013 Reasons for Judgment were delivered by Judge Donald in the Federal Circuit Court following interim proceedings between the parties. Orders were made, in summary, that provided as follows:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father;
c)that the child spend time with the mother each alternate weekend from after school Friday to before school Wednesday, for half of the school holidays, defined time on Mother’s Day, the mother’s birthday and the child’s birthday and defined time during the Christmas festive period;
d)that for the purposes of facilitating the mother’s time with the child, the mother collect the child from the child’s school at the commencement and return the child to the child’s school at the conclusion of the child’s time with her when applicable and otherwise, the mother collect the child from the father’s residence and return the child to the father’s residence; and
e)that the proceedings be transferred to the Family Court.
Following the making of the Orders on 12 April 2013, the child was not returned to the father’s care by the mother. It is to be inferred that subsequent to the Orders of 12 April 2013, the mother reported a concern to the New South Wales Police that the father had in his possession firearms. On 13 April 2013 a number of police officers attended at the father’s home and, following an exhaustive search, no firearms were located. The father says that he has never owned, been given or had in his possession a firearm of any kind.
Having retained the child following Orders of 12 April 2013, the mother filed a further Application in a Case on 22 April 2013 seeking that the Orders made on 12 April 2013 be discharged and that the father have supervised time with the child.
On 29 April 2013 the mother’s further application was before his Honour Justice Collier. Orders were made, in summary, as follows:
a)that the mother’s application filed on 22 April 2013 be dismissed;
b)that neither party shall themselves denigrate the other or discuss these proceedings with the child, nor cause, permit or allow any other person to do so;
c)that the father be permitted to remove the child from the Court at the conclusion of the hearing;
d)that the mother and those assisting her shall not leave the Court precinct for 15 minutes after the child has left with the father;
e)that the Independent Children’s Lawyer forthwith take the child into her care for the purpose of explaining today’s Orders to the child and, thereafter, the child shall be delivered by the Independent Children’s Lawyer to the father;
f)that the mother’s first period of time with the child commencing after school Friday shall be Friday 10 May 2013; and
g)that the proceedings be adjourned to 13 May 2013.
On 13 May 2013 the Court made further Orders relevantly as follows:
a)that the mother and father enrol the child in the D Org “C” program at Parramatta;
b)that pending the commencement of the C Program the child see the psychologist he has been presently attending upon on one occasion only;
c)that parenting and property proceedings be separated and that parenting proceedings be expedited; and
d)that a Family Report be prepared.
In November 2013 the child Ms J returned to live in the former matrimonial home in the father’s household.
On 6 December 2013 trial directions were made to facilitate the parenting matter being listed for trial commencing early February 2014, allocating four days for trial.
On 30 January 2014 the mother’s application to vacate the trial dates was considered. The mother asserted that she was unaware of the allocated trial dates until sometime after the allocation of dates, that she had recently changed solicitors and that she had recently been hospitalised and, following that hospitalisation, was unwell. She further asserted that she had been unable to obtain her file from her previous solicitors as a consequence of a dispute over fees and that she had only recently been able to obtain copies of Court documents to provide to her new solicitors.
The trial dates were vacated and the parenting proceedings listed for hearing to commence 10.00 am on 17 June 2014, allocating four days for trial.
On 12 June 2014 the wife filed an Application in a Case seeking to vacate the trial dates. The application was listed on the first day allocated for trial, 17 June 2014. There was no appearance by or on her behalf on 17 June 2014, the first day of the trial, and her application was dismissed.
From late last year the father has facilitated the child attending upon a chiropractor and a dietician. The child’s weight and diet is monitored by the dietician. The child attends upon the chiropractor for monitoring and treatment of his joint and muscle structure and, to the father’s observation, the child’s overall mobility and coordination has improved significantly.
The father expressed appropriate concern in relation to the child’s weight issue and has implemented various practices to address the issue.
The father makes complaint that in January 2014 the child complained to the chiropractor of being “whacked on the shoulder” by the mother.
The father asserts that the child has, since the beginning of this year, complained on a number of occasions to the father of being struck by the mother. The father has observed bruising on the child’s body, but in fairness, the father acknowledges that the bruising could also be consistent with bruising from the child engaging in play at school or playing soccer.
The father further asserts that recently the child has complained to the father saying variously “mummy has hit me”, “mum threw a knife at me and hit me at the handle end” and “mum kicked me up the bum” and that the mother has also closely monitored the child’s telephone conversations with the father when the child is in the mother’s care.
The father has some concern in that the mother does not return the child’s clothing to the father after the child’s time with the mother, but delivers them to the home or throws them into the yard of the father’s home. This is reflective of the very poor relationship between the parents.
Over the last few months the mother has returned the child home earlier then provided for in Orders.
The father is able to manage his work commitments so that he is mainly at home when the child is not a school or is not at sport. The school Term 1 “snapshot” report in relation to the child indicates that the child is progressing reasonably well at school.
Three weeks before trial, the father asserts he had a conversation with the mother’s “former boyfriend”, who asserted that the mother was using marijuana and abusing alcohol. This person refused to provide an affidavit in the proceedings and “did not want to get involved”. No action was taken to subpoena this person to give evidence. The father did not report these concerns to anyone.
The mother’s non appearance
On the first day allocated for trial, the mother did not appear, nor was she represented.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3)…
If the Court was not disposed to apply the provisions of r 16.07, an adjournment of the proceedings would have been necessitated. The mother’s circumstances are unknown. The future conduct of the proceedings would be problematic in relation to her involvement and leave uncertain the circumstances into the future for the child. In a situation where the participating parties, the father and the Independent Children’s Lawyer, have reached substantial agreement on a set of orders that they put forward as being in the child’s best interests, it is appropriate that consideration be given to allowing the hearing to proceed.
The Full Court in Jarrah & Fadel [2014] FamCAFC 14 considered the matters the Court should have regard to in considering an adjournment of proceedings. Her Honour Ainsley-Wallace J, in that case, referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
In this case, the mother’s circumstances are unknown and she has not engaged recently in the proceedings. It is uncertain whether she will re-engage in the proceedings in the future.
Given that the remainder of the parties involved have reached substantial agreement and that the principle set out in s 69ZN(7) of the Act provides that proceedings should be conducted without undue delay, it is imperative for the child that his best interests be considered not at some future indeterminate time, and at further cost to the taxpayer in relation to the Independent Children’s Lawyer and to the father personally, but in a timely manner.
The participating parties are entitled to have their applications heard and the matter to be determined.
The Family Report
The Family Report in this matter is dated 28 November 2013 and is Exhibit A in the proceedings.
The Family Reporter made the following recommendation:
a)that unless there is evidence before the Court to suggest otherwise, it is recommended that the child live with the father and spend time with the mother from after school Friday to before school Monday in alternate weeks and for half school holiday periods.
This recommendation was based on the consideration that currently the child lives with the father and the father lives in close proximity to the school that the child attends.
The Family Reporter identified no reasons to support a recommendation that the child be subjected to further significant change, which would arise from predominantly living with the mother on the New South Wales N Region.
The Family Report writer was of the view that, in the circumstances, it may be necessary for an order that the father retain sole parental responsibility for the child in the absence of any substantial improvement in the post-separation relationship between the father and mother.
Further, the Family Report writer viewed the involvement of the mother and father in a specialist service such as the D Org “F” program may assist them. Although the Family Reporter recommended that if one or both of the parents had not engaged with such a program between the period following the release of the Report and final hearing it was not recommended that such an order be made as a requirement to be involved with a specialist treatment program, it is unlikely to be of assistance in the absence of motivation for change.
At the time of the Family Report the mother lived on her own in a three-bedroom rented home in M Town on the New South Wales N Region. The mother had no plans to move and planned to open her own business in the local area shortly.
There is a distance of about 50 kilometres between the father’s residence in Suburb I and the mother’s residence in the N Region, involving about 40 minutes driving time.
The mother at the time of the Report was seeking orders that the child live with her and spend alternate weekends with the father.
The Family Reporter identified the issues in dispute as being the most appropriate arrangements for parental responsibility of the child and the most appropriate arrangements for the child living with or spending time with each of his parents.
During the assessment, the Family Consultant identified a primary issue being the potentially negative impact on the child’s mental health, development and well-being from his exposure to or involvement in his parent’s post separation parenting conflict. It was the mother’s view that the father was using the parenting proceedings to keep the house, the boat and the car and had inappropriately enmeshed the child in their separation and the Court proceedings.
The mother had engaged the child with a dietician’s on a fortnightly basis when the child was in her care but had not informed the father’s that she was doing so. During hearing, it became readily apparent that the mother had also engaged the child with many medical practitioners without the knowledge of the father. The mother made a period of complaints to the Family Reporter in relation to the father and it was apparent that she was unable to see anything positive in the father whatsoever.
The mother spoke positively regarding the father’s partners, Ms O, involvement with the child. Regrettably, that relationship has now ended.
The father expressed concern to the Family Reporter as to the mother’s history of marijuana use, her abuse of alcohol and her abuse of prescription medication, including methadone.
On interview, the child expressed concern about being ridiculed in relation to his weight. However, there were a number of things the child identified as being positive in relation to his schooling. The child identified the then current parenting arrangements as “a little bit okay” if they were to continue. The child was perceptive at least in his mind that the then current parenting arrangements were a bit “unfair” to mum and “too fair” for dad.
The child expressed no concerns in relation to either parent and would rather that his family was reunited. The child further reported a good relationship with his sister Ms J, the paternal grandparents and other members of his extended paternal family.
The Family Reporter had no concerns arising out of observation of the mother with the child, nor arising out of observation of the father with the child.
In evaluation the Family Reporter observed that the child’s views predominantly reflected his apparent desire for his parents to reconcile and his confusion regarding their conflicted relationship. His views otherwise seemed representative of the established and generally positive relationships that he appeared to have with each parent. It was recommended that, by reason of the child’s age and developmental level, no significant weight be attached to the child’s views, but nor should they be discounted.
The parties, observed the Family Reporter, presented with an ongoing acrimonious parenting relationship. They each blamed the other for the difficulties that they identify for the child. Neither parent demonstrated any significant insight into their own role in perpetuating their conflict or the harm that this appeared to be causing to the child.
The situation of ongoing conflict and poor communication cannot support a recommendation that the parents have shared parental responsibility for the child. Each parent, says the Family Reporter, had little that was positive to say about the other and each intimated that the child required some degree of protection from the other parent. However, there were no significant concerns regarding the parenting practices of either parent that were clearly identified in the assessment by the Family Reporter.
The Family Reporter observed that the child is likely to experience a reduction in time with one of his parents as stressful, however, it is considered that this may ultimately represent a less detrimental situation for the child than continuing the current arrangements and, hence, potentially greater exposure to their conflict and a greater burden of travel associated with attending school.
The best interests of the child
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode & Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
(a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
(c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The best interest considerations: The Additional Considerations: s 60CC(3)
The additional considerations in respect of determining best interests are set out in s 60CC(3) of the Act. The relevant considerations are as follows:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The views of the child, such as they are, are set out above. They are indicative of a desire to have a relationship with both of his parents. The child expressed no concerns as to his time with his mother. They are of some utility in the context of the issues to be determined.
b)the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The child remains in the primary care of the father, with the mother having substantial and significant time until recently. The child has established relationships with both parents, overshadowed by circumstances of parental conflict. Neither party has any reflective capacity in relation to the child’s need to be isolated from their conflict.
The child has a supportive relationship with his paternal grandmother, who assists the father.
Regrettably, Ms J, only just 18, was deposed on affidavit by the father, her step-father. It is clear that she now has a conflictual relationship with her mother and she deposed as to conflict and incidents of domestic violence within the mother’s household both before and after separation. She gave evidence against her mother in apprehended violence proceedings in the P Local Court in September 2013, notwithstanding for the week before the hearing had been an inpatient at a mental health facility. The subject incident related to a late night domestic incident where all adults involved had been drinking. There is no doubt that Ms J is enmeshed in these proceedings. The prospects of this relationship being ameliorated are poor, although the child resides primarily in the father’s household with Ms J, which may signal some improvement of the mother’s relationship with Ms J as her time with the child continues into the future.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;
Both parents have been involved in unilateral decisions relating to the child without reference to the other, particularly in regard to the child’s weight and medical issues. The mother, it appears, has shopped the child around numerous doctors. Whilst the child has been in the primary care of the father, the mother has appropriately spent time with the child and communicated with the child.
d)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 child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child is living with the father. The mother in her Amended Application seeks that the child continue to reside primarily with the father but that she have defined time with the child. There is, accordingly, no significant change in the child’s circumstances proposed. The father seeks an order that the child’s time with the mother be restricted to weekends, whereas the mother proposes that she continue to have the child for a long weekend over five nights per fortnight. There is some issue as to the mother’s residential location. The father acknowledges that more recently he is aware that the mother has been residing in the Suburb I area, although he describes the premises in somewhat unsatisfactory terms. The child has reported to the father that more recently he has stayed with the mother in the Suburb I area. One of the matters considered by the Family Reporter was the burden of travel for the child should the mother continue to have five nights per fortnight and she continue to reside in the New South Wales N Region. That does not seem to be a relevant consideration at this time.
The father acknowledged that the child would be upset if his time with the mother was reduced but “in time he would be happy”. The father asserts his concerns are protective.
The Independent Children’s Lawyer contends that an order be made that, in the event that the mother resides within 15 kilometres of the child’s school then her five nights a fortnight time with the child continue, and in the event that she resides outside that radius, her time be restricted to weekend time so as to avoid the burden of travel on the child. This appears to be an acceptable and sensible compromise.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The issue of travel for the child depending on the mother’s residence is considered above.
f)the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
As a consequence of their conflictual relationship, both parties present with a diminished capacity in this regard. They have little reflective capacity as to the impact of their behaviour on the child and, notwithstanding separation some time ago, continued to present with a significantly conflictual relationship. Should this continue, the effect on the child can only be detrimental. In this regard, it is appropriate that the parents attend a course to assist them in understanding the adverse consequences of what may be their ongoing conflictual relationship on the child into the future.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The child is only 8 years of age. The prospect of the child being adversely affected by the parent’s ongoing conflict into the future is all too real. It is appropriate that the parents attend a parenting course to seek to minimise the damage their behaviour may do to the psychological development of their child.
h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This factor is touched upon by the other factors considered above. Both parents demonstrate little insight into the nature of their relationship and its impact on the child, indeed the father seems to revel in the conflict with the mother and his control as primary care giver. They have no regard for the child, nor their responsibilities as parents. In such a circumstance, it is appropriate to make orders ensuring the role of the mother in the life of the child.
i) & j) any family violence or family violence order;
Both parties have used the system to seek apprehended violence orders against the other. The basis of such orders is a “reasonable fear” of the commission of a family violence offence. There is in existence an Order protecting the father with conditions that the mother not approach or contact him, except through legal representatives or pursuant to an order under the Family Law Act 1975 (Cth) or to facilitate contact with the child. The utility of the Order is questionable.
The mother has been charged with family violence offences but on the evidence (in relation to Ms J) was found proved, no conviction recorded and the mother placed on a good behaviour bond for 12 months and on the other (in relation to the father) the mother was convicted and placed on a 12 month good behaviour bond.
i)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is appropriate that final orders be made so that the child has certainty in relation to his relationship with both parents.
The Primary Considerations: s 60CC(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. This consideration is to be given greater weight.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The child’s relationship with both parents is at present overshadowed by their interpersonal conflict. Should that continue then the child’s continuing relationship with both parents will into the future diminish in its quality and not be important, significant and valuable to the child. It is important that both parents recognise their respective shortcomings in this regard and do all in their power to remedy, as best they can, their conflictual relationship. To this end, it is proposed to require the parents to participate in an appropriate course of counselling.
During oral evidence of the father, it was apparent that he was not supportive of the child’s relationship with the mother. Indeed, he unilaterally ended the child’s therapeutic engagement with D Org Counselling for ingenuous reasons set out in Exhibit G. Orders were made facilitating the engagement of the child and the parties in the D Org “C” program on 13 May 2013. The program counsellors meet and provide feedback to the parents so as to facilitate the parents receiving feedback from the counsellors and other relevant persons in the child’s best interest.
On 14 February the Independent Children’s Lawyer sought assurances from the father that he would continue to facilitate the child engaging in the program and the child’s attendance in circumstances where the child had engaged with the program since July 2013 on 9 occasions.
The father obtained a referral from the child’s general practitioner on 9 May 2014 and unilaterally engaged the child with another counsellor, Ms G, psychologist, without informing or involving the mother. He did not accept that it was appropriate that he should have told the mother. Significantly, a history was given to the psychologist by the father on several occasions, most of it derogatory of the mother. The child in providing information to the psychologist demonstrated a significant enmeshment in these proceedings and the conflict between his father and mother, reflecting many of his father’s criticisms of the mother. Significantly, the child told the psychologist on 10 June 2014 that he wanted to spend more time with both parents, noted the mother was moving to Suburb I (a fact acknowledged by the father) but expressed some reservation as to the quality of the mother’s accommodation, it being too small and he was sleeping on the couch (Exhibit K).
Earlier, the father had the child attend upon a dietician without informing the mother. The child was referred to the Clinic at Q Hospital. The father has failed to act on the referral.
The father acknowledged that D Org recommended that the parties attend the “F Program” program specifically designed for high conflict situations. The Family Reporter makes the same recommendation. Yet the father did nothing to enrol in the program, asserting that he “ran out of time”. It is appropriate that the child and parents re-engage with the program. In the event that D Org refuses to accept the parties and child back then appropriate information should be provided to the child’s psychologist, Ms G, to give her a more balanced history.
The father has indicated his willingness to attend the “F Program” program and it is appropriate that both parents do so.
The father’s actions overall are not the actions of a person interested in resolving conflict for the sake of his child but the actions of a person who seeks to estrange the child from the mother.
The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. This is a most significant issue for this child. The Family Reporter alerted the parties to the impact on the child of the continuing conflictual relationship, yet neither party has completed the parenting course proposed by the consultant. The child has been exposed to violence between the parents and other aspects of their inappropriate behaviour. The prospective continuing exposure of the child to such behaviour was of significant concern. However, the separation of the parties substantially resolves this issue.
There is a strong inference that the child has been subjected to physical discipline by the mother. There will be an appropriate restraining order to prevent this into the future.
Otherwise, the father expresses protective concerns for the child with the mother, yet such recent evidence only arose in the context of his oral evidence, notwithstanding several updating affidavits filed shortly before trial.
Who should have parental responsibility?
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out above.
There has been family violence in the relationship between the mother and the father and the child has been exposed to that violence. Otherwise, the best interest considerations referred to above, together with the recommendation of the Family Reporter in circumstances of high conflict and little capacity to communicate, are clearly indicative of a requirement that one parent or the other have sole parental responsibility for the child. Accordingly, the presumption as to equal shared parental responsibility is rebutted and there will be an order that the father, with whom the child will primarily reside, will have sole parental responsibility for the child. He should be required to consult with the mother as to his decisions and provide notification to the mother of medical and like appointments and provide, where necessary, authority for the mother to obtain information.
The Court is thus not required to give consideration to the provisions set out in s 65DAA of the Act as to whether a child spending equal time with each of the parents is in the best interests of a child and reasonably practicable, and if so, to consider making an order for such equal time, or if not, to consider whether a child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.
The orders to be made by the Court fall to be determined by reference to the best interest considerations, discussed above.
The child has been spending five nights per fortnight during school term with the mother since April 2013. At the time of the Family Report the mother was living at M Town, necessitating significant travel. It appears that the mother may now have accommodation again in the Suburb I area. In that event, the mother can pick up the child from school and return the child to school at the end of his time with her. This mostly obviates the possibility of conflict.
The Independent Children’s Lawyer supports a continuation of the present regime as to the child’s time with the mother, subject to her residential circumstances. Should she move some distance away, making travel onerous for the child, her time, submits the Independent Children’s Lawyer, should be limited to weekends from Friday after school to Monday before school only in school term. That is a practical solution.
Orders reflecting these reasons will be made accordingly, as set out at the forefront of this Judgment.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 July 2014.
Legal Associate:
Date: 28 July 2014
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Family Law
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Civil Procedure
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