TIPPER & TODD
[2016] FCCA 1682
•21 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TIPPER & TODD | [2016] FCCA 1682 |
| Catchwords: COSTS – Order for costs – costs of the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.13C, 60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| Cases cited: De Roma & De Roma [2013] FamCA 566 L & T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 Tipper & Todd [2014] FCCA 1544 Tipper &Todd (No.2) [2014] FCCA 2231 |
| Applicant: | MS TIPPER |
| Respondent: | MR TODD |
| File Number: | SYC 1658 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 12-14 August, 11 November 2015, 8-10 February, 15 March 2016 |
| Date of Last Submission: | 15 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lethbridge SC & Ms Winfield |
| Solicitors for the Applicant: | Paul Marsh & Associates Solicitors |
| Counsel for the Respondents: | Ms Spain |
| Solicitors for the Respondents: | Andrew Harris and Associates |
| Solicitor for the Independent Children's Lawyer: | Ms Wearne |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All previous Parenting Orders are discharged.
Except as provided by Orders (3) to (7) the Respondent Father is to have sole parental responsibility for the child X born (omitted) 2012 (hereinafter referred to as “X”) in relation to decisions concerning the child’s long term care, welfare and development including but not limited to:
(a)The child’s education and schooling;
(b)The child’s religion;
(c)The child’s health and medical treatment; and
(d)The child’s place of residence within Australia.
Except in the event of an emergency, the Father must prior to implementing any decision about the care, welfare and development of the child:
(a)attempt to contact the Mother in writing;
(b)attempt to ascertain the Mother’s views in relation to the decision; and
(c)give proper consideration to the Mother’s views.
The Mother is to have such parental responsibility as is necessary for any health professional or institution dealing with the child X including but not limited to medical practitioners and allied health professionals, to:
(a)Obtain such urgent medical treatment as the child may require when he is spending time with her; and
(b)Obtain any information about the child to which a parent is normally entitled including but not limited to medical reports, treatment plans and similar matters.
Each parent must promptly provide to the other:
(a)the names and contact details of all medical, therapeutic or allied health practitioners upon whom X has been attending or is required to attend; and
(b)details of any medical, therapeutic or other allied health appointment which X is required to attend and any treatment prescribed by such practitioners for the child.
Both parents are authorised by these Orders to obtain from any pre-school or school that X may attend information about his progress and welfare including but not limited to:
(a)copies of all school reports, awards and information regarding X’s achievements and activities; and
(b)school photograph order forms so that each parent has the opportunity to order school photographs of the child; and
(c)information about parent-teacher nights, sports and swimming carnivals, school concerts, prize-givings and events to which parents are normally invited.
The child X born (omitted) 2012 is to live with the Father.
Until he commences school at the beginning of the school year in 2017, the child X is to spend time with the Mother in a two week cycle as follows:
(a)In the first week, from the conclusion of day care or pre-school on Friday until the commencement of day care or pre-school on the immediately following Monday or Tuesday in the event that the Monday is a public holiday; and
(b)In the second week, from the conclusion of day care or pre-school on Thursday until the commencement of day care or pre-school on the immediately following Friday.
After he commences school at the beginning of the school year in 2017, X is to spend time with the Mother:
(a)During school term time, in a two week cycle as follows:
(i)In the first week, from the conclusion of school on Friday until the commencement of school on the immediately following Monday or Tuesday in the event that the Monday is a public holiday; and
(ii)In the second week, from the conclusion of school on Thursday until the commencement of school on the immediately following Friday.
(b)During the school holidays, unless otherwise agreed:
(i)The child X is to spend the first half of the school holidays at the conclusion of Terms 1, 2 and 3 with the Mother, such time to commence at the conclusion of school on the last day of the school term and conclude at 5:00 pm on the second Saturday of the school holidays;
(ii)In respect of the Christmas/January school holidays, X is to spend the first half of the 2017-2018 Christmas/January school holidays and each alternate Christmas/January school holidays thereafter with the Mother, such time to commence on the last day of Term 4 and to conclude at 5:00 pm on 8 January AND X is to spend the second half of the 2017-2018 Christmas/January school holidays and each alternate Christmas/January school holidays thereafter with the Mother, such time to commence at 5:00 pm on 8 January and conclude on the day two (2) days prior to the day when the child is required to attend school at the commencement of Term 1.
Notwithstanding the provisions of any other Order:
(a)The child X is to spend Mother’s Day in each year with the Mother, such time to commence at 9:00 am on Mother’s Day and conclude at the commencement of school on the immediately following Monday; and
(b)X is to spend Father’s Day in each year with the Father, such time to commence at 9:00am on Father’s Day and conclude at the commencement of school on the immediately following Monday.
X’s time with the Mother in accordance with Order (9)(a) is suspended during school holidays and will recommence:
(a)When X has not spent the last week of the school holidays with the mother, then the first week of the school term will be “Week 1” of the two weekly cycle; and
(b)When X has spent the last week of the school holidays with the Mother, then the first week of the school term will be “Week two” of the two weekly cycle.
X’s time with the Mother will be facilitated:
(a)When time is to commence or conclude at day care, pre-school or school, the Mother is to be responsible for collecting X from and returning him to, those places at the commencement and conclusion of his time with her.
(b)Otherwise:
(i)The Father is to be responsible for delivering X to the Mother’s home at the commencement of the child’s time with her; and
(ii)The Mother is to be responsible for delivering X to the Father’s home at the conclusion of the child’s time with her.
X is to communicate by telephone, Skype, Facetime or like communication with the parent with whom he is not living or spending time:
(a)At any reasonable time that the child requests such communication;
(b)The Mother may communicate with X each Tuesday, Friday and Sunday between 6:00pm and 7:00pm when she is not otherwise spending time with the child; and
(c)The Father may communicate with X each Sunday, Wednesday and Friday between 6:00pm and 7:30pm when he is not otherwise spending time with the child.
Each parent is restrained by injunction:
(a)from criticising or denigrating the other parent or any member of that parent’s family, in the presence or hearing of the child X; and
(b)from permitting or allowing any other person to criticise or denigrate the other parent, or any member of that parent’s family, in the presence or hearing of the child X.
Each parent must ensure that the other parent has their up-to-date contact details, including address and mobile telephone number and must promptly notify the other in case of any change to any of their contact details.
As provided by section 13C of the Family Law Act 1975, the Mother must forthwith do all acts and things necessary to attend and complete a “Circle of Security” course, such course to be conducted in a one-on-one format, rather than in a group setting, and must provide evidence of her completion of the course to the father and the Independent Children’s Lawyer.
Within three (3) months of the date of these Orders, the Mother must pay the sum of $9,037.90 to Legal Aid NSW by way of contribution to the costs of the Independent Children’s Lawyer.
Within three (3) months of the date of these Orders, the Father must pay the sum of $9,693.90 to Legal Aid NSW by way of contribution to the costs of the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Tipper & Todd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1658 of 2014
| MS TIPPER |
Applicant
And
| MR TODD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting Orders by the mother of a little boy called X, who was born on (omitted) 2012. X currently lives with his father, who is the Respondent to the Application.
The Mother seeks orders that:
a)the parties should have equal shared parental responsibility for the child;
b)the child should live with her;
c)the child should spend time with the Father on alternate weekends and on the Thursday night of the other week of the other week of the fortnight during the school term and half of the school holidays;
d)the parties should be restrained from removing the child from Australia; and
e)Other ancillary orders.
The Father, by his amended response filed on 3rd August 2015, seeks orders that:
a)the child should live with him;
b)the parties should have equal shared responsibility for the child;
c)the child should spend time with the Mother on alternate weekends and on the Wednesday night of the other week of the fortnight during the school term and for half of the school holidays;
d)On special occasions, including Mother’s Day;
e)the parties should be permitted to travel internationally with the child; and
f)Other ancillary orders.
The Independent Children’s Lawyer in a minute of proposed orders filed in Court on 15th March 2016, the last day of the hearing, suggests orders that:
a)the Father should have sole parental responsibility for the child, X, in relation to decisions concerning his long term care, welfare and development, including, but not limited to:
i)the child’s education and schooling;
ii)the child’s religion;
iii)the child’s health and medical treatment; and
iv)the child’s place of residence.
b)the Mother should have such parental responsibility as is necessary to obtain urgent medical treatment for X when he is living with her and obtain any information about the child to which a parent is normally entitled;
c)the child should live with the Father;
d)the child should spend time with the Mother on alternate weekends from after school or pre-school on Friday until the commencement of school or pre-school on Monday and on Thursday nights in the alternate week of the fortnight during the school term;
e)the child should spend half of the school holidays with the Mother;
f)the child should spend special days, such as Mother’s Day, with the Mother;
g)the mother should attend a Circle of Security course under the provisions of section 13C of the Family Law Act 1975 (Cth);
h)the Mother should pay the sum of $9037.90 to Legal Aid New South Wales towards the costs of the Independent Children’s Lawyer; and
i)the Father should pay the sum of $9693.90 to Legal Aid New South Wales towards the costs of the Independent Children’s Lawyer.
Ms Wearne, who appeared for the Independent Children’s Lawyer, tendered an amended costs notice showing how the amounts claimed were made up, together with a copy of the Legal Aid Commission Scale of Fees (Costs Recovery). The amount sought appears to be appropriate and I am of the opinion that there are circumstances that justify making an order for the costs of the Independent Children’s Lawyer.
As it turned out I was persuaded that the orders proposed by the Independent Children’s Lawyer, with some modifications, came closest to meeting the best interests of the child.
Background
The parties were married in a (omitted) ceremony in (country omitted) on (omitted) 2011. They were married in a civil ceremony on (omitted) 2011 in (omitted), New South Wales. They are now divorced by order of this Court made on 3rd November 2015.
The Mother was born in (omitted), New South Wales on (omitted) 1986. The Father was born in (country omitted) on (omitted) 1980.
The Father had been working in (country omitted) at the time of the marriage and returned to (country omitted) after the wedding ceremonies. The Mother joined the Father in (country omitted) on (omitted) 2011.
Shortly after her arrival in the (country omitted) the Mother became pregnant. On (omitted) 2011, the Mother returned to Sydney and commenced living with her parents who assisted her to arrange medical care for her pregnancy.
On (omitted) 2012, the Father arrived in Sydney from the (country omitted) for the birth of the child. The child, X was born on (omitted) 2012. As can readily be seen, the child is now aged four years and five months.
On (omitted) 2012, the Father returned to the (country omitted). The Mother and X remained living in Sydney living with the Mother’s parents.
On 14th June 2012, the Mother and X travelled to the (country omitted) to join the Father.
On 16th September 2012, the parties relocated back to Sydney, together with the child after spending a few weeks with the paternal grandmother in (country omitted). They lived with the maternal grandparents for a month before renting their own home. The Father commenced full-time work while the Mother cared for X.
In October of that year, according to the Father, the Mother became agitated on one occasion and deliberately cut her hand and on another occasion was discovered by the Father in the kitchen holding a knife to her chest.
On 17th October 2012, the parties and X moved to a rented unit in (omitted).
On 24th January 2013, after an altercation, the police were called to the matrimonial home by the maternal grandparents. The Mother had told them that the Father had hit and pushed her. The police applied for an Apprehended Domestic Violence Order protecting the Mother from the Father, to which the Father consented without admissions.
The Apprehended Domestic Violence Order was made for a period of 12 months. The Mother and X went to stay with the maternal grandparents. The Mother attended hospital for treatment for bruising.
On 23rd February 2013, the Mother and X returned to live with the Father. However, the maternal grandparents contacted the police to allege that the Mother had been kidnapped by the Father. The police spoke to the Mother who told them that she had willingly returned to live with the Father.
In June 2013, the Father ceased his employment. He arranged for the Mother to see a general medical practitioner whom she did not know, one Mr M to refer her to a psychiatrist, Dr P. The Mother commenced seeing Dr P once a month and was prescribed a drug called Lexapro for anxiety and depression. According to the Mother, this was all against her will.
In July of that year, the child commenced family day care for two days a week. The Mother commenced therapy with a psychologist, one Mr A having been referred by Dr P.
In September 2013, the Mother commenced full time work. The Mother was employed in the (omitted) industry. The child’s time at day care increased to five days per week.
In February 2014, the Mother’s employment ceased. The Mother commenced or recommenced communication with her parents from whom she had been estranged.
On 12th March 2014 the Mother and Father separated on one occasion on one account, although there is also evidence to the effect the separation occurred the day before on the 11th.
The Mother left the matrimonial home but the child remained in the care of the Father. When she left, the Mother went to live with her parents but she signed a letter saying that she was leaving X in the custody of the Father. It is the Mother’s evidence that she signed this letter because the Father would not otherwise allow her to leave. According to the Father, however, the Mother chose to leave without the child. On 15th March 2014, the parties attended a mediation arranged by the Father but no agreement was reached.
On 31st March of that year the Father moved with X to his cousin’s home in (omitted).
From March to June 2014 the Mother and sometimes the maternal grandparents, would see X once or twice a week for an hour or two under the supervision of the Father.
The Mother commenced proceedings by filing an Initiating Application supported by an affidavit on 21st March 2014. The Application was returnable on 16th June 2014. On that date the parties were directed to attend a Child Dispute Conference with a Family Consultant on 10th July 2014.
An order was made placing the child’s name and other particulars on the Family Law Watchlist maintained by the Australian Federal Police.
When the parties attended the Child Dispute Conference on 10th July, the Family Consultant recommended a psychiatric assessment of the Mother.
When the matter returned to Court on 14th July 2014 the Mother, through her Counsel Ms Winfield, sought interim parenting orders. Orders were made by consent that, without admission by the Mother that the time with her was sufficient, the child would spend time with the Mother from 10:00am to 6:00pm each Sunday.
After hearing submissions, I made further orders that:
a)The child X would spend time with the Mother from 10:00am to 3:00pm each Sunday, in addition to the time on Saturday.
b)The Father was to surrender the child’s passport to the Sydney Registry of the Court within 14 days.
c)An Independent Children’s Lawyer was to be appointed under the provisions of section 68L of the Family Law Act 1975.
The matter came on for an interim hearing on parenting on 23rd September 2014.
On 26th September, I made further interim parenting orders (Ms Tipper & Todd (No. 2)[1]). Those orders provided that:
a)The parties were to have equal shared parental responsibility for the child;
b)The child would live with the Father;
c)The child would spend time with the Mother in a graduated program of steadily increasing time on weekends;
d)The Father was to ensure that the child attended (omitted) Family Day Care Centre from Monday to Friday in each week;
e)The Mother was to consult her treating general medical practitioner with respect to her mental health; and
f)Other subsidiary orders.
[1] [2014] FCCA 2231
The parties were directed to attend interviews with a Family Consultant for the purpose of preparation of a Family Report. The Family Report was released on 5th August 2015.
The Application was listed for final hearing on 12th to 14th August 2015. The hearing did not finish within the allotted time, and the proceedings were adjourned part heard to 11th November 2015, to continue until 13th November. The parties recommenced on 11th November 2015 with the cross-examination of the Father but did not proceed to the second and third days due to my illness.
The proceedings were then adjourned part heard to 8th February, and continued until 10th February 2016. On 15th March 2016, which was the last hearing day, the parties’ lawyers tendered various documents and made oral submissions.
Evidence
The Court heard oral evidence from:
a)The Applicant Mother on 12th and 13th August 2015.
b)The maternal grandmother, Ms Tipper on 13th and 14th August 2015.
c)The maternal grandfather, Mr N on 14th August 2015;
d)Dr K by telephone on 14th August 2015;
e)the Respondent Father on 11th November 2015 and 8th February 2016;
f)Dr P on 9th February 2016;
g)Ms M, the Father’s cousin, on 9th February 2016;
h)Dr D by telephone on 9th February 2016; and
i)Ms K, the Family Consultant on 10th February 2016.
The final hearing day on 15th March 2016 was taken up with the tender of various documents and submissions by the parties’ lawyers.
Applications for Parenting Orders
When considering the law to be applied in proceedings for parenting orders, the court is bound to consider a number of matters set out in Part VII of the Family Law Act. In particular the court must consider section 60B of the Act which sets out the objects of Part VII and the principles underlying those objects.
The court must consider section 60CA, which provides in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how it is that a court determines what is in a child’s best interests. The primary considerations are to be found in subsection 60CC(2) and consist of:
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.
Subsection 60CC(2A) provides that in applying the considerations set out in subsection (2) the court is to give greater weight to the considerations set out in paragraph 2(b), that is to say, the need to protect the child from physical or psychological harm.
Subsection 60CC(3) sets out the additional considerations and they are to be found at paragraphs (a) to (m) of the subsection. They include at paragraph (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 court must also consider the matters in section 61DA of the Family Law Act.
Section 61DA refers to the presumption of equal shared parental responsibility when making parenting orders. Subsection (1) provides that when making a parenting order in relation to a child 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 for the child. However, under subsection 61DA(2) the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent of the child has engaged in abuse, neglect of the child or family violence.
Subsection 61DA(4) provides that the presumption may be rebutted by evidence which satisfies the court that it would not in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child.
Where a court does make an order for a child’s parents to have equal shared parental responsibility the court must consider the matters in subsection 65DAA of the Family Law Act. Subsection (1) states that if a parenting order provides or is to provide that the child’s parents are to have equal shared parental responsibility for the child the court must:
a)consider whether the child spending time with each of the parents would be in the child’s best interests;
b)consider whether the child spending equal time with each of the parents is reasonably practical; and
c)if it is, consider making such an order providing for the child to spend equal time with each of the parents.
However, under subsection 65DAA(2) if the court does not make an order for the child to spend equal time with each of the parents, when an order has been made that the parents are to have equal shared parental responsibility for the child the court must then consider:
a)whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
b)if it is, consider making an order providing for the child to spend substantial and significant time with each of the child’s parents.
All of those matters have been considered in making this decision.
The Family Report
The Family Report dated 27th July 2015 was released to the parties on 5th August. It was prepared by Ms K. For the purpose of that report the Family Consultant interviewed the Father, the Mother and the two maternal grandparents and observed the child with the Father and with the Mother and with the Mother and the maternal grandparents. She also set out that she read a variety of documents that were provided to her.
In preparation of her report, the Family Consultant noted that both parents claimed to have been X’s primary carer during the relationship. The Family Consultant noted that the parties separated on 12th January 2013, but subsequently reconciled on 23rd February.
An Apprehended Violence Order for a period of 12 months had been made.
The Family Consultant noted at page 3 of the report that the parents gave different accounts about the process of reconciliation. The Father suggested that the Mother contacted him in order to reconcile, whereas she suggested to the Family Consultant that the Father kidnapped her, isolated her from her family and forced her to seek psychiatric treatment. She saw a psychiatrist named Dr P and a clinical psychologist named Mr A.
The Mother also claimed that she was forced by the Father to talk negatively about her parents to them and that was the case until she ultimately left the relationship. She further claimed to the Family Consultant that the Father coerced her into signing a document to state that she was leaving X with him, although the Father claimed that the Mother left X of her own volition and freely wrote the letter which he did request her to write. The Family Consultant noted that subpoenaed records from Dr P suggested that the Mother had a history of self-harm, that she felt isolated and over protected by her parents and that her parents disapproved of the Father. Dr P had formed the impression that the Mother was suffering from depression and anxiety and commenced her on psychotropic medication.
The Family Consultant noted that subpoenaed records from Mr A, the clinical psychologist, suggested that the Mother felt emotionally abused by her parents and did not want to have a relationship with them. The records also suggested that the Mother had had suicidal ideation in the past, that she discussed being physically assaulted by the Father and that her parents were not supportive of the Father, due to his perpetrating violence against her.
The Family Consultant noted that X had lived with the Father since the separation and continues to do so, spending time with his Mother each weekend from 5:00pm on Friday to 6:00pm on Sunday, which is an arrangement that has been in place since 2nd January 2015. The child attends day care from Monday to Friday from approximately 9:30am to 5:00pm. The Father takes X to day care each day and picks him up from day care each Monday and Wednesday. His cousin picks X up from day care on Tuesdays and Thursdays and the Mother picks the child up from day care on Friday.
The Mother lives in her parents’ five bedroom home in (omitted). Whilst she was not employed she was studying for her (qualifications omitted). The Family Consultant noted that the Father proposed that X live with him and spend alternate weekends from Friday afternoon to Monday morning with the Mother and proposed that he should have sole parental responsibility for X. The Mother proposed to the Family Consultant that X should live with her and her parents and spend one day a fortnight with the Father with no overnight time and she proposed that she should have sole parental responsibility for the child.
It is noted that the positions of both parties had changed by the conclusion of the evidence. The Family Consultant noted that the issues in dispute were:
a)parental responsibility;
b)with which parent X should live; and
c)how much time he should spend with the other parent.
The Family Consultant noted a number of issues that she had identified during the assessment, being:
a)who was the child’s primary carer during the relationship?
b)allegations of family violence;
c)allegations of mental ill health;
d)the nature of the parental relationship and their ability to effectively communicate;
e)the nature of X’s relationship with each parent;
f)the nature of X’s relationship with his maternal grandparents;
g)the role of the maternal grandparents in the dispute;
h)the role of the Father’s cousin in the dispute; and
i)whether the Mother was coerced into giving false information to her mental health professionals.
At interview the Father presented as confident and articulate. He described having a positive and respectful relationship with his parents, who currently reside in (country omitted). However, he said that the maternal grandparents interfered in his relationship with the Mother, including by making allegations against him and his family that he was having a sexual relationship with his aunt and niece and telling the Mother that she should leave him. The Father said that the Mother was anxious, depressed, fearful and tearful during the relationship, that she engaged in self-harming behaviour and experienced suicidal ideation.
The Father told the Family Consultant that he continued to be concerned about what he perceived to be the Mother’s lack of attachment to X and her inability to attend to the child’s needs and to care for him appropriately. He described the Mother as leaving the child unattended at a function and lacking responsibility when the child went missing. He described her as being jealous of the child, leaving his plates and cups in an unhygienic state and having a general lack of interest in the child.
Whilst he acknowledged that he could not replace the role of a child’s mother, he said that he felt that if the Mother was not interested in caring for X, then she should let him do so. The Father described the child as a very social child who gets along with anybody. He said the child sleeps through the night and has a day nap for one to one and half hours. The Father did note that the child looked tired when he returned from spending time with the Mother and he questioned whether the Mother, in fact, put him down for nap during the day. It apparently unsettles the child if he does not have a nap.
The Father told the Family Consultant that he believed that he and the Mother were unable to co-parent as they disagreed on such issues as how to toilet train the child, whether he has constipation and whether he should attend pre-school. He said that he did not have the Mother’s telephone number in order to communicate with her, as she had cut off contact with him. He believed that the Mother was not “fighting for” X in the Court proceedings but this was “her parents’ case”[2].
[2] Family Report 27 July 2015 page 10 at paragraph [28]
The Mother presented to the Family Consultant as nervous and subdued in interview. She stated that this was because she had been missing the child and because she is typically a quiet person. She told the Family Consultant her relationship with the Father was good after they got married when they were living in the (country omitted), but believed that the Father’s cousin coaxed him to return to Sydney and said that she wanted to stay in the (country omitted) as she liked it there and felt peaceful.
She said that there was poor communication between her and the Father during the relationship as he did not give information to her about how much money he had in the bank and did not give her money for expenses. She felt that she was always paying for expenses in relation to rent, petrol and the child’s needs from her own personal savings or with money given to her by her parents.
The Mother told the Family Consultant that adjusting to parenthood was difficult at first as she felt that the Father was unsupportive and physically absent, especially as he was in the (country omitted) until the child was five months old.
The Mother believed that she was X’s primary carer from birth up to separation. She claimed to be a capable parent who undertook the primary care of X, as the Father was away for five months.
When discussing her mental health, the Mother denied she had a history of any mental ill health, denied a history of suicidal ideation or self-harm and denied that she had received any psychiatric treatment. However, the Family Consultant noted that this information appeared to be contradicted when she discussed being taken to a psychiatrist by Mr Todd. She then acknowledged that she experienced depression and anxiety in relation to being unhappy in the marriage and because she was missing her parents.
The Mother alleged the Father slapped her face on one occasion because she did not speak to her father-in-law properly. She said that on another occasion the Father pulled her off the balcony of their apartment, dragged her across the floor and kicked her in the knees in the past. This occurred after she had helped him to clear rubbish bags from the balcony.
The Mother said that she started to have contact with her parents again just prior to the final separation and the parents would bring cooked food with them, which the Father did not want. She said that she called her parents to tell them that she was ending the relationship with her husband and that this was when the final separation occurred. She said she told the Father she would be taking the child with her but the Father said that it was late in the evening, so she left without X. She said that she wrote a note that she was leaving X in the Father’s care until a parenting arrangement could be organised because the Father would not allow her to leave the house otherwise.
She returned the following morning to collect the child but the Father said that he had gone to a lawyer and refused to allow the child to go with her and subsequently restricted her contact with him.
The Mother described X as a “bubbly and social child”[3] but she said that she was concerned about X’s development because he was more fluent in (language omitted) than in English and because she considered the child’s play during the relationship to have been inappropriate in that he used to play with saucepans rather than toys.
[3] Family Report page 15 at paragraph [40]
The Mother said the child becomes quiet, agitated and teary upon preparation for changeover and questions why the Father is coming. She said the child appears scared of his father and does not want to go with him. The Mother said that she was seeking sole parental responsibility because there was poor parental communication. She said that she and the Father disagreed on decisions for X and that he was not satisfied with the way that she looked after the child.
The Mother’s proposed order, the family consultant noted, reflected her concern about the Father allegedly being a heavy smoker and a drinker, which the Father denies. The Mother complained that the child’s clothes have smelt like smoke in the past and that the Father used to drink two glasses of scotch on most nights.
The Family Consultant interviewed the maternal grandparents. They were interviewed together, although the maternal grandmother tended to answer questions posed to them. The grandmother said that the child had a strong attachment to her and to her husband and to the Mother. She said that X preferred to sleep with his mother, as he did not want to sleep alone. She was critical of the Father’s cousin, describing him as an aggressive and volatile person. She said that she and her husband had never had any concerns about their daughter’s mental health.
She described the Father as an assertive and controlling person, who financially and physically abused her daughter. She said that her daughter’s marriage was an unhappy one and the Father was argumentative and wanted everything his way.
The Family Consultant noted the child X, who was then aged three years and six months, presented as a cheerful and bright little boy, who smiled at everyone he came across. His speech was difficult to decipher at times and he spoke mostly in three word sentences but his parents seemed to understand him.
The Family Consultant noted that X is yet to be toilet trained and was wearing a nappy on the day of interviews. The Family Consultant observed the Father and X upon their arrival. X greeted the Family Consultant with a big smile and he appeared to be excited about playing with the toys in the playroom. He played with various toys in an excited manner and the Father allowed X to lead the play. They engaged in positive interactions. Later he was taken to the childcare room and left with the childcare worker easily and without distress.
However, the child appeared confused upon his mother’s arrival in the childcare room. He allowed the Mother to pick him up and they entered the playroom. He was smiling, and tried to engage his mother in play in an animated fashion, however the Mother appeared hesitant and lacking in spontaneity when engaging with X. The child said he wanted to see his grandparents and go to the Mother’s home. He did so and greeted them with a smile and then wanted to go and sit next to the grandmother.
The Family Consultant noted that during the period of this observation the childcare worker who was present noted that X’s nappy had an odour. The Mother was prompted by the Family Consultant to respond to deal with this issue. The Family Consultant also noted that the child’s shoelaces were undone when he was exiting the childcare room and asked the Mother to respond to this. The child became distressed at lunchtime, when it was time for changeover to his father and he was taken home.
In her evaluation, the Family Consultant noted the Father and the Mother gave divergent narratives about many aspects of the parenting relationship and felt that it was difficult to make evaluative statements about the nature of the parental relationship without the veracity of the allegations being tested in evidence. The Mother alleged the Father was a controlling and physically abusive person who isolated her from her family; the Father alleged that the Mother has a dependent relationship with the parents and struggled to differentiate from them once she married and started her own family.
The Family Consultant noted that X presented as a cheerful and bright little boy who was meeting his developmental milestones at a slow pace. She noted that he appeared confused about his mother’s appearance on the day of the interviews, as it was not part of his normal routine. The Family Consultant noted, at paragraph 60 of the Report, that the Mother:
denied experiencing current mental ill health, however her affect during the course of the day was flat and anxious.[4]
[4] Family Report page 22 at [60]
Whilst she stated that her presentation was due to a combination of her missing X and her typically being a quiet person, concerns about an underlying mental health issue cannot be ignored said the Family Consultant, in light of the Father’s allegations and the subpoenaed material. The Family Consultant expressed the opinion that a child of X’s age needed his carers to have a consistent approach in parenting in order to prevent confusion and to assist him in reaching his developmental milestones.
This had not occurred and there was a poor parental relationship and the parents had divergent views on parenting the child. In her recommendations, the Family Consultant said that if the Father’s allegations were substantiated, then it was recommended that X live with him and spend time with his mother as per his proposal. If, however, the Mother’s allegations were substantiated then consideration may be given to whether X should live with his mother. The Family Consultant went on to say:
Given the likelihood that Ms Tipper has significant psychological morbidity (that she had been coerced into adopting a role of someone with a significant psychological disorder) then if X comes to live with her she will need both psychological and parenting support and engagement with a program such as Circle of Security.[5]
[5] Family Report page 23 at [63]
Evidence
The parties and their witnesses gave evidence over a period of a number of days: three days in August; one day in November which was truncated due to the illness of the trial judge; three days in February 2016. 15th March was reserved for the tender of the significant bundle of documents and submissions by the parties’ lawyers and the Independent Children’s Lawyer.
It is noticeable that the flat effect of the Mother which was observed by the Family Consultant in her interview was apparent when the Mother gave oral evidence on 12th August. At the time she proposed a most restrictive parenting arrangement whereby the child would live with her and spend a very limited amount of time with the Father. This was somewhat surprising in view of the fact that the child had been living with the Father from separation until this point. Again it was noted that the Mother gave monosyllabic answers. It took some questioning from the Bench in order to elicit from the Mother exactly what arrangement she was proposing at that stage but what she told the Court was that she was seeking:
(1)sole parental responsibility for the child;
(2)that X should live with her;
(3)that X should spend time with his father each alternate Saturday from 9:00am until 12 noon;
(4)it was not the Mother’s proposal that the child would spend time with the Father either on his birthday or the Father’s birthday or on Father’s Day;
(5)the Father’s time with the child should be under supervision at a contact centre; and
(6)these orders that the Mother proposed should continue until the child attained the age of 18.
It is noteworthy that the Minute of Proposed Orders tendered to the Court at the end of the evidence on 15 March 2016 differed substantially from this rather odd proposal.
The Father’s evidence was by comparison confident and straightforward.
Submissions
The lawyers for the parties made extensive oral submissions on 15th March.
Ms Wearne, who appeared for the Independent Children’s Lawyer, submitted that the preliminary question that fell to the Court in the course of determining those proceedings was the issue of family violence. Ms Wearne reminded the Court that the Family Consultant had made recommendations that were conditional upon the Court’s finding in that regard.
Ms Warne noted that in cross-examination Ms K had conceded that this was an extremely important issue in the case. If the Mother’s narrative or version was to be accepted the Court would come to the conclusion that the Father is a perpetrator of coercive and controlling violence, a man who is pathologically violent. Whilst the Father did not deny there had been an incident on 24th January 2013 Ms Wearne submitted that the evidence was that there was a situational incidence of violence but it was not the characteristic of the entire relationship.
Ms Wearne was critical of the Mother’s evidence and submitted that the totality of the evidence supported a finding of situational violence in a difficult couple relationship where they struggled to find their boundaries around the interference of the involvement of their parents. This was consistent with the Father’s version that the relationship while they lived in the (country omitted) away from all extended family involvement was peaceful. Ms Wearne went on to submit that it was significant that the Mother’s amended Minute of Orders was wholly inconsistent with her case that the Father was a perpetrator of such coercive controlling violence. Not only would such a perpetrator be unsuitable to have a child live with them for five nights a fortnight, it would be wholly inappropriate and unworkable for the Mother to enter into what is effectively a shared care arrangement with such a man.
Ms Wearne sought to refer to an article by Jennifer McIntosh and Richard Chisholm entitled “Shared Care and Children’s Best Interests in Conflicted Separation”[6]. I pointed out to her that if there was such an article it should be before the Court. Ms Wearne expressed the view that she thought it was a well-known article but I made it clear saying if I was to refer to it, it should be available to everyone. The document was subsequently made available.
[6] Australian Family Lawyer Vol 20 No 1
Ms Wearne referred to the fact that the Father had given evidence that he had been unable to get through to the Mother on a telephone number that she had provided and referred the Court to the Mother’s evidence in August about the Mother’s convoluted arrangement, where she had a specific telephone for communication with the Father which was switched off and kept in a drawer and goes through to a landline which is then answered by the grandmother if the Father needs to contact her in an emergency when the child is in his care.
Ms Wearne drew the Court’s attention to the Mother’s allegation that the child was fully neglected in the care of the Father, notwithstanding the findings of a paediatrician, Dr C and indeed, the Family Consultant, about the child’s regular and good development. Ms Wearne referred to issues noted by the Family Consultant about the child’s dirty nappy and the Mother having to be prompted to do anything about that and had to be reminded to attend to the boy’s physical needs.
Ms Wearne also submitted that this was a matter where it was appropriate for the Court to make an order that both parties should pay the costs of the Independent Children’s Lawyer and referred to a decision of the Honourable Watts J called De Roma & De Roma[7].
[7] [2013] FamCA 566
Ms Spain of Counsel, who appeared for the Father, told the Court at the outset that she adopted the submissions made by Ms Wearne for the Independent Children’s Lawyer. She said that her client would be able to communicate more with the Mother and although he stated it would be preferable to have physical shared parental responsibility with the Mother, he did not believe that that was realistic.
She submitted that the evidence is that it is not realistic for these parents to have shared parental responsibility and she adopted the submissions of the Independent Children’s Lawyer in regard to that. Ms Spain was critical of the Mother’s earlier evidence that the child should spend three hours a fortnight with his father under supervision. She had made no inquiries of a contact centre. When it was put to her in cross-examination that this would mean that the child could never go away on a holiday with his father, the Mother agreed but did not appear to have an issue with that point.
She noted that the Mother denied that this proposal, if implemented, would mean that the child could not have a meaningful relationship with his father because she believed that he could. This, Ms Spain submitted, raised concerns about the Mother’s lack of insight and her lack of understanding of the child’s needs. Ms Spain commented that the Mother’s application changed after she had given her evidence and the subsequent proposal was very different from the sworn evidence that she gave in the proceedings.
Ms Spain agreed with the characterisation by Ms Wearne that the violence referred to as situational violence and noted that the Father told the Family Consultant that he regretted his actions and said he should not have touched the Mother, no matter what. Ms Spain submitted that there was no suggestion that the Mother had been kidnapped by the husband and his family and she was not able to see her parents at that time. She referred to the evidence of Dr P and noted that when he saw the Mother with her parents, that the parents dominated the conversation and the Mother was not able to be as assertive with him when they were in the room, as opposed to when the Father was in the room.
As to the Mother’s evidence about not being able to take X with her when she left the family home on 11th March, she noted the inconsistencies in the Mother’s evidence pointed out by Ms Wearne for the Independent Children’s Lawyer. It was submitted that the Father has been successfully caring for the child by himself with some assistance since March of 2014. The Mother’s interactions with the child noted by the Family Consultant on the day of the interviews for the Family Report raised significant concerns about the Mother’s capacity to care for the child.
One of the Father’s main concerns is a lack of attachment between X and his mother. He raised those concerns with the Family Consultant and Ms Spain noted that the Father’s cousin, Ms M, when she gave evidence, noted an incident where she saw the Mother put X on the floor at a family function and just left him. She told the Court that it did not appear that the Mother was bothered looking after him. The Father had described the Mother as having left X unattended at a function and lacked responsibility with the child went missing and noted a general lack of interest in the child.
Ms Spain drew the Court’s attention to the comment by the Family Consultant that if X were to go and live with the Mother, she would need both psychological and parenting support. She would need to engage with a program, such as Circle of Security. It was submitted that the Mother denied that she needed any parenting support and that the Mother seemed to have an inability to understand her deficiencies of where she does need help. That lack of acknowledgement, it was submitted, made it highly unlikely that the Mother would get that help if she really needed it.
It was drawn to the Court’s attention that an order was made on 8th September 2014 that both parties engage in a Parenting after Separation course. The Father did but the Mother only did so almost a year later after three days of hearing. It was submitted the Father was not alleging that any mental health issues that the Mother might have prevented her from looking after X and that was reflected in the orders that he sought. He did not seek orders that the child would spend four days or four nights out of 14 with the Mother predicated upon her getting some help with her mental health. Ms Spain also drew the Court’s attention to the evidence of Dr P that many people with depression hold down full time jobs and perform those jobs adequately and that such issues are not mutually exclusive.
Whilst the Father had sought an order about the Mother having psychological treatment or psychiatric treatment, Ms Spain adverted to a comment from the bench that the decision of the Full Court of the Family Court in L & T[8] meant that such an order for psychiatric examination or psychiatric treatment could only be made as a condition of a parenting order and it was submitted by Ms Spain that the Mother would be reluctant to engage with it and she queried how effective it would be. Ms Spain submitted that Dr P who was the Mother’s treating psychiatrist for a period of time believed that the Mother still had some vulnerabilities. It was Dr P’s view that at some time it was an issue when stress will create difficulties.
[8] (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699
Mr Lethbridge of Senior Counsel submitted on behalf of the Mother that these were proceedings where the Court should make orders which returned the child X to the primary care of his mother. He submitted that the Court should do so because it was in X’s best interests that he be returned to the primary care of his mother with appropriate orders for significant and substantial time with his father. There was no dispute to the proposition that the wife was caught between her husband on one side and her parents on the other and that discussion had taken place with both sides placing more emphasis on vindicating their respective positions, unsustainable though they might be, rather than with any proper focus on the best interests of the child.
Mr Lethbridge submitted that there are parts of the Father’s case that were unsustainable. He submitted that the Father had led a concerted and meritless attack upon the Mother’s psychiatric wellness. His submission was that the Court would find no significant evidence to suggest that apart from suffering anxiety and depression of a moderate to minimal kind anxiety and depression which were never of a type which presented a danger to the child or any incapacity to care for him. It was submitted that there was no sustainable diagnosable psychiatric condition on the part of the Mother and the court only needs to look at the orders that were made over time to see for the most part every time the Mother sought more time with the child that that was opposed.
Mr Lethbridge submitted that the parties’ relationship was a tempestuous relationship; there were regrettable incidents. He submitted that the Mother had been in full time employment prior to marriage. The parties married in (omitted) 2011 and commenced cohabitation. The child was born in 2012. The Mother was a mother who was caring for her child in circumstances where the likely position is that the child had bonded to her where the Father was not involved because he was still working in the (country omitted) when she had returned. Mr Lethbridge referred the Court to the evidence of Dr K for the Mother and went on further to refer to the evidence of Mr A and Dr D.
What Mr Lethbridge did say was that Counsel for the Father and the lawyer for the Independent Children’s Lawyer had levelled criticisms on the Mother’s inconsistency. What he sought to do was to balance that evidence and to say that whilst there were propositions which the Mother had advanced which the Court might consider entirely unsustainable and indeed to the point, ridiculous that this is a balancing act that was against those contentions. It has been a similarly unsustainable and indeed nasty case. It is a very nasty thing to assert he submitted without the benefit of evidence that somebody suffers from a psychological or psychiatric condition which prevents their having proper time with their child. This is particularly so in circumstances where prior to the matter being the subject of litigation, that is, prior to the separation, nothing sustained the proposition.
It was the Mother he submitted, who looking at the unchallenged evidence was the consistent worker in the marriage. It was she who went out and obtained employment. When difficulties arose in the marriage it was she who continued to obtain employment. When it was asserted that she was unfit, i.e., psychiatrically unfit to care for her son without supervision she was out getting herself a contract to work and when that contract expired shortly following separation she commenced work with the (employer omitted) in April 2014, a month after the separation.
Mr Lethbridge drew the Court’s attention to the orders that had been proposed by the Independent Children’s Lawyer and said that there were some remarkable aspects of them. He said it was asserted there should be a sole parental care long term responsibility order made but there were, in his submissions, some disturbing elements.
If it was proposed that the Father be given sole parental responsibility as to X’s place of residence what if the Father proposed to move; what if he decided to live in Victoria? He had sole parental responsibility to do so. What would happen if he decided to move to (country omitted)? He could determine that. That, of course, had been adopted by the Father, he submitted, on what basis? He submitted that the parties had been essentially at war and that his client had had to put up with the proposition that she was psychiatrically disturbed. He submitted that whilst there was no doubt that she fought back at times inappropriately but people do that.
He said there was no real support for the proposition that once the Court makes orders that they will not be complied with. In fact he submitted that every order that the Court had made over the proceedings seems to have been complied with which is a different situation to some. Despite their conflict overarching there has been the capacity for both of them to accept the umpire’s decision. The Court, therefore, should see that going forward that that would continue. He was critical, therefore, of the Independent Children’s Lawyer for apparently suggesting otherwise.
Mr Lethbridge expressed the concern that rightly or wrongly the child was being groomed to be removed from Australia. He referred to a paragraph in his client’s affidavit where she expressed those concerns. He was of the view that the parents should be given an opportunity to co-parent and that there is a Watchlist order in place. His concern is that the Father has only extended family in Australia, a maternal cousin who lives in the Sydney suburb of (omitted). He is a permanent resident of this country.
There was an assertion, however, that the Father was intending to take a trip overseas. This is a man who has worked in (country omitted), holds a (nationality omitted) passport and neither (country omitted) or (country omitted) he submitted are countries which have signed the Hague Convention. If the child were to go to (country omitted), he would never come back unless the Father conceded that he should. What he was submitting, however, is that the court should avoid a relocation case.
Conclusions
My conclusions are that this has been a very lengthy case. The Court is bound by the requirements of Part VII of the Family Law Act. The court must regard the best interests of the child as the paramount consideration. The court must consider the matters contained in section 60CC of the Act, including the need to make orders to provide for the child to have a meaningful relationship with both of his parents and for the court to make orders that would protect the child from physical or psychological harm from being subjected to or exposed to abuse or family violence. The court must consider parental responsibility and whether the presumption for equal shared parental responsibility applies.
As I indicated at the beginning of these reasons, I am satisfied that, in essence, the proposed orders submitted by the Independent Children's Lawyer best meet the best interests of this child. I am of the view that this child should continue to live with the Father but that he should spend regular and frequent time with the Mother. I am of the view that I do have concerns about the Mother’s psychological state and her ability to cope with the stressors of parenting a child.
The Mother’s effect during her evidence on 12th and 13th August was notably flat and the propositions that she espoused on those occasions were, to say the least, extraordinary. They do not, of course, reflect the orders that she seeks in these proceedings now but she has had the benefit of legal advice, including for the latter part of the hearing, briefing experienced senior counsel.
This does not appear to me to be a case where equal shared parental responsibility is going to work. The communication between the parties is poor to non-existent. The very arrangement that the Mother had about a specific telephone for the Father to ring up and advise if there was an emergency about the child was extraordinary and quite unworkable. My view is that if this child is going to continue to live with his father and I believe that that is in his best interests, that the Father should have the sole parental responsibility submitted by the Independent Children's Lawyer, but with some modifications.
I accept the criticisms made of the proposal by Mr Lethbridge of Senior Counsel about giving the Father carte blanche to decide where in the world that the child would live. My view is that the Father should have parental responsibility to decide about the child’s place of residence within Australia. There are parenting orders currently in force and about to be made which will have the effect under section 65Y of the Family Law Act that if the Father or for that matter, the Mother, seeks to take the child out of Australia without the consent in writing of the other party or an order of the Court this would be a criminal offence.
Obviously, the Mother must have parental responsibility in respect of day to day things, including such matters as urgent medical treatment. I am of the view that the child spending time with the Mother on alternate weekends from after day care, or preschool, or after school once he commences school, which will be in 2017, for the weekend until the Monday morning. Again, it is appropriate that in the other week of the fortnight that the child spend time with the Mother from after the day care, or preschool, or after school, on Thursday afternoon until the beginning of school, or preschool, on the Friday morning.
That would give him an extra night in the care of his mother. Changeovers, however, taking place at school will significantly reduce the opportunities for the parents to meet at changeover, which will have the effect of reducing hostile or unfortunate exchanges. It is well known that the difficulties of changeover between parents impact badly on children’s sense of wellbeing. I am of the view that the child should spend school holiday time with the Mother, he should certainly spend Mother’s Day with his mother, and as that is a Sunday he should stay with her that night and then be taken to school or preschool the following morning. He should spend Father’s Day with his father.
There should be communication by the child with the parent that he’s not living with by telephone, or Skype, or FaceTime. These are parties who have experience in the (omitted) field and would not have difficulty making such arrangements. It seems quite clear that the recommendation of the family consultant that the Mother should attend and complete a Circle of Security course should be followed and I propose to make that order under the provisions of section 13C of the Family Law Act.
I will make orders for the parties to make payments of the significant amounts of $9037.90, and $9693.90 to Legal Aid New South Wales towards the costs of the Independent Children’s Lawyer. The Independent Children’s Lawyer has played a significant role in these difficult proceedings, and I am satisfied that the circumstances justify a costs order being made. I am of the view that the Orders that I propose to make are in the best interests of the child, X and I will order accordingly.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 6 July 2016
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