Tomov and Tresler
[2017] FCCA 884
•5 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOMOV & TRESLER | [2017] FCCA 884 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – living arrangements – allegations of family violence – alcohol abuse – mental health issues. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 61DB, 65DAC |
| Cases cited: A & A (1998) FLC 92-800 |
| Applicant: | MR TOMOV |
| Respondent: | MS TRESLER |
| File Number: | HBC 661 of 2013 |
| Judgment of: | Judge Baker |
| Hearing date: | 21 April 2017 |
| Date of Last Submission: | 21 April 2017 |
| Delivered at: | Hobart |
| Delivered on: | 5 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| The Respondent: | Ms Tresler in person |
| Counsel for the Independent Children’s Lawyer: | Ms Ryan |
ORDERS
Parental Responsibility
The father, MR TOMOV, have sole parental responsibility for the child [X] born (omitted) 2012 (“[X]”).
In the exercise of his sole parental responsibility the father will do the following:-
(a)Provide the mother with written notice by registered mail (“the notice”) of any proposal with respect to [X]’s education, significant health issues and/or welfare, along with the basis for the proposal as soon as practicable and if the communication relates to [X]’s high school enrolment that notice will be provided no later than the end of [X]'s Grade 5 year;
(b)If the mother does not agree with the father’s proposal, conditionally agrees with the father’s proposal, or does not reply to the notice, the father will invite the mother to a family dispute resolution conference at a community organisation to attempt to resolve the issue; and
(c)If after a family dispute resolution conference there is no agreement or only partial agreement the father can then proceed to make his decision, action it and notify the mother of this by registered mail.
Live With and Communication
Commencing 4 May 2017, [X] live with the father for a block of six (6) consecutive nights per fortnight from after school Thursday (or 3:00 p.m. if not attending school that day) to commencement of school Wednesday (or 9:00 a.m. if not attending school that day).
Commencing 10 May 2017 [X] live with the mother for eight (8) consecutive nights a fortnight from commencement of school Wednesday (or 10:00 a.m. if not attending school that day) to after school Thursday (or 3:00 pm if not attending school that day).
[X] may communicate with the parent she is not staying with that night, by telephone or other electronic method, such as Facetime or email, on the fourth night of [X]’s contact block time in either parent’s home, at 6:30 p.m. when [X] is in the father’s care or 6:00 p.m. when [X] is in her mother’s care, and additionally at times [X] asks to speak to her other parent, provided the hour is reasonable.
Once in any calendar year each parent is permitted to extend their fortnightly time with [X] during a school holiday period, to create block of not greater than 10 nights (unless agreed otherwise in writing), provided they give the other party not less than 12 weeks written notice and provide make-up time in the next school holiday period equivalent to the number of nights forgone by the other parent.
Such further alternate time with either parent as agreed in writing between them.
Special Days & Holidays
The live with orders pursuant to Orders 3-7 above will be suspended on the following special days and instead [X] will spend time with her respective parents as provided for below:-
(a)On the father’s birthday (26 July), if it falls on a Monday to Thursday during the school term, [X] will spend time with her father from after school on the day of the father’s birthday to commencement of school after the father’s birthday.
And the Court notes the mother’s birthday is 23 December and therefore incorporated into Christmas time with the mother in odd numbered years.
(b)On Father's Day [X] will spend time with her father from after school (or 3:00 p.m. if not attending school that day) on the Friday of the weekend Father’s Day falls on to commencement of school (or 9:00 a.m. if not attending school that day);
(c)On Mother's Day [X] will spend time with her mother from after school (or 3:00 p.m. if not attending school that day) on the Friday of the weekend Mother’s Day falls on to the commencement of school (or 9:00 a.m. if not attending school that day) Monday;
(d)For Christmas:
i)[X] will spend time with her father:
(i)in even numbered years from 4:00 p.m. Christmas Eve to 10:00 a.m. Boxing Day;
(ii)in odd numbered years from 10:00 a.m. Boxing Day to 4:00 p.m. 28 December;
ii)[X] will spend time with her mother:
(iii)in even numbered years from 10:00 a.m. Boxing Day to 4:00 p.m. 28 December;
(iv)in odd numbered years 10:00 a.m. 22 December to 10:00 a.m. Boxing Day;
Both parties are at liberty to attend [X]’s school and extra-curricular engagements, such as, but not limited to assemblies, sports training, sports games, carnivals, fairs, concerts awards nights and the like.
Changeover
Changeover shall occur as follows:-
(a)If changeover falls on a day [X] attends school, changeover will be at school;
(b)If changeover falls on a day [X] does not attend school changeover will be held at the (omitted contact service) at 3:00 p.m. if the service is able to facilitate the changeover.
(c)If changeover would otherwise be held at the (omitted contact service), but the (omitted contact service), cannot facilitate changeover, it will then be held at the (omitted) Police Station or such other venue as the parties agree in writing at 3:00 p.m.
(d)A third-party agent sent by one of the parties may collect or deliver [X] to changeover AND if that is to happen [X]’s school/childcare are to receive the appropriate authority from the parent who would otherwise have collected or delivered [X].
(e)If changeovers are to be held at the (omitted contact service) all changeovers will occur at times as close to those provided for in these Orders as the (omitted contact service) can facilitate.
[X]'s School Enrolment
Unless a court with competent jurisdiction orders or unless agreed otherwise in writing between the parents [X] will remain enrolled at [School A] until she commences high school and neither parent will enrol her in any other primary school.
Within seven (7) days of the date of these Orders the Independent Children’s Lawyer will provide the principal of [School A] with a copy of these Orders and the father will provide a copy of these Orders to any other school at which [X] is enrolled.
Injunctions and Responsibilities
Both parties are hereby restrained from consuming illicit substances while [X] is in their care and during the twelve (12) hours prior to [X] coming into their care.
The mother is restrained from consuming alcohol in the twelve (12) hours prior to [X] coming into her care and while [X] is in her care.
In order to appropriately address and manage her mental health issues, the mother is to continue to engage with her medical and mental health professionals and follow their reasonable recommendations with respect to treatment, including medication, and the frequency of her attendances on those professionals. It is noted that the mother has agreed to the recommendations made by Mr D which include:
(i)Continuation of meaningful contact and engagement with the (omitted Mental Health Service).
(ii)Participation in psychological therapy to assist her with aspects of personality disorder.
(iii)Cognitive behavioural therapy regarding her perceptions of the father’s behaviours.
(iv)Contact with a service providing rehabilitation, counselling and education in relation to her use of alcohol.
In the event the mother is unable to care for [X] due to health issues, [X] will live with the father or, if the father is not available, the paternal grandmother.
T.F. and Mother are each restrained from:
(a)abusing, insulting, belittling, rebuking, or otherwise speaking negatively, rudely or critically about the other parent to [X], in the presence of [X] or within [X]’s hearing and nor will they permit any other person to do so;
(b)discussing these proceedings or any future dispute between them in the presence or hearing of [X] or permitting any other person to do so;
(c)subjecting or exposing [X] to any form of family violence.
The parties will promptly inform each other of any serious illness/injury or threat of the same suffered or sustained by [X] whilst in their respective care.
Unless it is an emergency, the parties will only take [X] to (location omitted) Family Practice to consult a general medical practitioner, unless otherwise agreed in writing.
Within seven (7) days of the date of these Orders the Independent Children’s Lawyer will provide (omitted Mental Health Service) with a copy of these Orders and the single expert reports of Mr D released 23 February 2016 and 10 April 2017.
The parties are at liberty to provide their respective present or future health professionals or any health professionals consulted by [X] with a copy of the single expert reports of Mr D released 23 February 2016 and 10 April 2017.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, [X] attends on or consults, failing which this order shall, of itself, constitute such authority;
(b)To speak to, and receive oral or written communication from, any school/other educational institution attended by [X], failing which this order shall, of itself, constitute such authority;
(c)Tell the other parent their new residential address and telephone contact number within seven (7) days of any change to these; and
(d)Notify the other parent should [X] suffer any medical emergency, serious illness, or other significant issue affecting [X]’s health or welfare, whilst in their care within a reasonable time of the event.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in A.A. and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tomov & Tressler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 661 of 2013
| MR TOMOV |
Applicant
And
| MS TRESLER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders by the father of the child [X] born (omitted) 2012 (“[X]”).
[X] lives with the mother in a home owned by the mother’s grandfather for which she pays rent. The mother is a full-time parent.
Since approximately September 2015, [X] has been spending time with the father each alternate Friday to Monday. Since March 2017, she has been spending time with him on six nights per fortnight. [X] attends [School A] three days per week.
The father is employed full-time as (occupation omitted) at the (employer omitted) working from 7:00 a.m. until 5:30 p.m. each week day. He has been in a new relationship for 12 months and lives with his partner in (omitted). He owns his own property which is a three-bedroom home on a one hectare block. [X] has her own bedroom.
Background
The parties commenced a relationship in (omitted) 2011 and separated in December 2011.
At the time of [X]’s birth, the father was employed as (occupation omitted) and worked in (location omitted) on a fly in/fly out basis. He did not spend regular time with [X] during the first few years following her birth.
The mother has a history of mental health issues, and a history of alcohol abuse. She has been diagnosed with a borderline personality disorder.
The Department of Child Services (“the Department.”) became involved with the mother prior to [X]’s birth. Notifications were received by the Department. regarding her risk behaviours whilst pregnant with [X]. The Department commenced proceedings in July 2012, as it was believed that [X] was at risk, due to the mother’s mental health, alcohol abuse and criminal history. The Department sought and obtained an assessment order. During the assessment order, [X] remained living with the mother and her maternal grandmother. Initially the father visited the mother’s home to spend an hour or two with [X] at a time.
In August 2012, the mother ceased facilitating time between [X] and the father. He engaged solicitors to seek a resumption of his time with [X]. After a letter was sent to the mother, she allowed the father to spend time with [X] at her house or his house, provided that she was always present.
On 28 October 2012, the father went to the mother’s house to spend time with [X]. He found that she was intoxicated and could not speak properly. He attempted to remove [X], due to his concerns for her safety. The father called the police for assistance. They assisted him to remove [X]. Whilst this was happening, the mother assaulted a police officer. [X] remained in the father’s care for several days. He returned her to the mother when he believed it was safe to do so.
Following this incident, the mother prevented the father from spending any further time with [X]. The father re-engaged his solicitors, who wrote to the mother on two occasions in August 2013. She did not respond. The father attempted to arrange mediation. The mother refused to attend. The father then commenced proceedings.
On 6 December 2013, interim orders were made on an undefended basis for the father to spend time with [X]. They provided that he was to spend time with her between 10:00 a.m. and 4:00 p.m. on six occasions in each calendar month, coinciding with his work roster when in Tasmania.
As a result of the mother not complying with court orders, the father filed a contravention application. He was not able to spend any substantial time with [X] for around five months. The contravention application was settled by consent in September 2014.
The father started having overnight time with [X] during 2014. In 2015, he ceased working on a fly in/fly out basis and moved back to Tasmania. He started spending time with [X] on weekends. Further interim orders were made in August 2015. They provided that he spend time with [X] each alternate Friday until Sunday.
Proposals
The father sought an order for sole parental responsibility of [X]. He sought an order for shared care of [X] on 8/6 nights per fortnight in the mother’s favour. He also sought other orders in accordance with the orders sought by the Independent Children’s Lawyer (“ICL”).
The mother sought an order for equal shared parental responsibility for [X] and an order that [X] live with her and spend alternate weekend time with the father.
The ICL sought an order that [X] live with the parties on an 8/6 arrangement per fortnight in the mother’s favour. She seeks orders for special day time and other orders as set out in her comprehensive case outline.
Evidence
The father relied on his affidavit filed 19 April 2017; the affidavit of Ms W filed 8 March 2017; the Family Report dated 9 September 2016; the affidavit of Mr D dated 23 February 2016 and his updated report dated 19 April 2017. The father was cross-examined. The mother and the ICL did not require Ms W to be cross-examined.
The mother was self-represented and did not rely on any documents. She did not file a trial affidavit. She gave oral evidence and was cross-examined.
The ICL relied on Mr D’s affidavit dated 23 February 2016 and his updated report dated 19 April 2017. Mr D gave evidence and was cross-examined.
The matter was listed for a final hearing on 9 and 12 December 2016. The hearing date was vacated, due to the mother suffering mental ill-health. New trial directions were made and the matter was listed for final hearing on 21 and 24 April 2017.
On 28 February 2017, the father filed an application in a case in respect of a dispute about [X]’s schooling. The matter resolved by consent orders. The orders provided for [X] to be enrolled at [School A].
Relevant Law
Section 60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that when a Court is determining whether to make a particular parenting order in respect of a child, the child’s best interest is the paramount consideration.
In determining the child’s best interests, the Court is guided by s.60CC of the Act.
Primary Considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents;
This consideration is informed by s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
[X] has a close and loving relationship with both parents. There is no dispute that it is of benefit to her to have a meaningful relationship with both of them in the future.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A)
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b.)
The principles to be applied in a matter involving risk of harm to children are set out in the High Court decision of M & M.[1] The nature of the risk is best expressed by the term “unacceptable risk”. There needs to be an evaluation of the nature and degree of risk and whether with or without safeguards, it is acceptable. The concentration should normally be upon the question of whether there is an unacceptable risk to the child. Risk covers not only physical, but also emotional harm.[2]
[1] (1998) 166 CLR 69.
[2] A & A (1998) FLC 92-800.
In accordance with these principles, a court should therefore evaluate the nature and degree of risk to the child and whether, with or without safeguards, it is acceptable.
Recently there has been a period of mental instability regarding the mother. In November 2016, there was a notification made to police from the maternal grandmother, who indicated that the mother’s mental health was deteriorating. She was concerned that the mother was suicidal.
In December 2016, [X] was in the father’s care for approximately 17 days because the mother was too depressed to care for her. She contacted the father and asked him to look after [X] during that time.
On 3 January 2017, a notification was made by the father to the police regarding the mother’s mental health and the police attended her home. The mother confirmed that she was in a depressive state and police noted she did not appear lucid.
On 27 January 2017, a restraint order was made against the mother protecting the father’s current partner.
The father gave evidence that on 27 January 2017, the maternal grandmother telephoned him and told him that on 24 January 2017, the mother had cut down a neighbour’s tree without permission. She was intoxicated at the time. She then drove [X] in the car and was pulled over by the police and then ran from the police. She was breathalysed and a reading of 0.152 was obtained and her licence was taken off her. She suggested that the father retain [X] in his care, which he did until 30 January 2017.
The “Facts for the Prosecutor,” prepared by Constable O, indicate that on 21 January 2017, police from (location omitted) were tasked to attend to a report of a neighbour type dispute at (address omitted). The mother was known by police and on arrival at her address, she drove quickly out of a driveway past police with her daughter [X] in the rear in her child seat. The facts went on to say:
Police activated the emergency lights and motioned for the defendant to pull over but she then proceeded on driving onto nearby (omitted) Street then on to a section of (omitted) Road then returned to (omitted) Road and she did this twice and refusing to stop. She was eventually corralled over to the side of the road on (omitted) Road.
At this point the defendant left the vehicle with her child in her arms and threw her car keys into the bush land.
She was stopped on foot by police whilst heading back toward her address carrying her daughter.
It was noticed that she was visibly intoxicated, her eyes were bloodshot and glassy and she was unsteady on her feet and there was a strong smell of alcohol on her breath.
The defendant was being uncooperative however police were eventually able to conduct a roadside breath test with a positive result. Police were also able to facilitate temporary care for the defendant’s daughter. She was taken into custody and conveyed to the (omitted) police station where she was… directed to furnish a sample of her breath…a reading of 0.152 had resulted from analysis of the defendant’s breath and she required a blood test. The defendant was also issued with an ‘excessive drink driving’ notice.
At this point the defendant refused to leave the analysis office to be presented to the custody Sergeant to allow her to be formally charged and bailed.
She became abusive towards all officers present and was then conveyed to Hobart Police headquarters where she was to be detained until she calmed down. She did calm down on arrival and was able to be formally charged for these offences and bailed.
The defendant then accompanied the breath analysis operator Mr M to the (omitted) Hospital where she provided a blood sample. Whilst in police custody the defendant’s moods varied from abusive, aggressive obnoxious to calm and co-operative at times consistent with a mixture of high level of intoxication and a type of mood disorder.
The mother did not dispute these “Facts for the Prosecutor”, save that she denied she threw the keys in bush land. She said she pretended to do so. She also indicated the blood test reading was 0.133.
On 15 February 2017, the mother made a report to the police regarding [X]’s welfare. The police attended the father’s home and he made a decision not to return [X] to the mother that day. The police indicated that the mother was highly erratic in her behaviour.
On 23 M. 2017, further interim orders were made. They provided that [X] spend six consecutive nights with the father each fortnight.
The mother’s mental illness is only relevant insofar as it affects the best interests of [X]. Mental illness does not, in and of itself, mean that an individual is not a capable and loving parent. A court should only act protectively when an individual’s mental illness affects his or her capacity to care for a child, or puts the child at risk of harm.[3]
[3] See Connor & Hulett [2011] FamCA 196, 16.
Mr D reported that the mother has been diagnosed with bipolar disorder, borderline personality disorder and poly substance abuse. Contact with mental health services was regular from approximately 2006 until the birth of [X]. The diagnosis of bipolar disorder originated from an in-patient admission in Western Australia. in 2011. The diagnosis most consistently given by mental health professionals over an extended period is borderline personality disorder, usually complicated by alcohol abuse.
Mr D reported that since the birth of [X] the mother’s emotional instability and expression of this personality disorder has improved. During [X]’s infancy there were some difficulties in the relationship with the father, including some outbursts of anger as well as alcohol abuse. Mr D indicated that the primary concern in relation to the mother’s parenting ability would be a relapse into alcohol abuse coupled with emotional problems, situation crises, impulsive behaviours and difficult relationships. Her parenting ability would likely be compromised in these circumstances.
Mr D was of the view that the father is a relatively conservative individual by nature, not particularly impulsive, with somewhat traditional values. The mother, in contrast, has a propensity to be emotional, impulsive, being involved in intense interpersonal relationships and somewhat unconventional. He said it would be difficult to find more contrasting personalities styles. This has led to significant difficulties in their abilities to communicate, co-parent and make decisions about [X]. This also contributes significantly to her inability to agree on terms and adhere to them.
Mr D in his April 2017 report gave an update of recent issues between the parties, including the serious incident in January 2017 involving the mother drink-driving with [X] in the car.
Mr D observed [X] with the father. [X] appeared comfortable in his company. They interacted naturally and with warmth. [X] was observed to be quite assertive in her interactions with the father.
Mr D observed [X] to be happy, confident and comfortable with her mother. Her presentation was consistent with the observation of her with the father. She was happy selecting different activities. She interacted with the mother warmly and appeared very secure in her company.
Mr D reported that the father impressed as being a relatively passive individual, who finds it difficult to act assertively when required. He appears to experience significant discomfort with interpersonal conflict and will avoid it where possible, usually by acquiescing to another person’s demands or avoiding contact altogether.
Mr D reported that the mother has a tendency to perceive the father’s actions as manipulative or deliberately malicious and it is this perception that precipitates her reacting emotionally. He believes that this misperception is likely to continue into the future.
The mother has a history of using alcohol as a coping strategy. This not only has a negative effect of worsening her feelings of depression but can result in her becoming increasingly impulsive, having significantly impaired judgment and or becoming emotionally reactive. Another maladaptive coping strategy she has regularly used is avoidance. During periods of emotional crisis, she tends to be avoidant, choosing not to make a decision or to change her mind on past decisions. This is again a reflection of a personality disorder and her difficulty in regulating emotion and tolerating stressful situations.
Mr D repeated his previous observations in his 2016 report:
the concern in relation to Ms Tresler’s parenting ability would be relapse into alcohol abuse coupled with emotional problems, situation crises, impulsive behaviours and difficult relationships. Her parenting ability would likely be compromised in the circumstances.
Mr D reported:
over the past 12 to 18 months Ms Tresler has made a decision to report a childhood sexual abuse, which has contributed to a decline in her mental health. She has experienced ongoing conflict with Mr Tomov, likely perceiving that her relationship with [X] is under threat. Ms Tresler herself has characterised [X] as her glue. Consumption of alcohol has also contributed to significant issues, including criminal charges resulting from her driving under the influence of alcohol and placing [X] at risk by having her in the car with her when Ms Tresler was driving when intoxicated.
Mr D concluded that primary parenting responsibility should be placed with the father in terms of major parenting decisions. He supports the arrangement of an 8/6 parenting arrangement. He recommended that the mother continue meaningful engagement with the (omitted) mental health service; participate in psychological therapy; obtain additional cognitive behavioural therapy regarding her perceptions of the father’s behaviours; and contact a service providing rehabilitation, counselling and education in relation to the use of alcohol.
Mr D believes that it is likely there will be ongoing misperception and conflict between the parties in relation to their parenting of [X]. He recommends that communication between them be kept to a minimum and that parenting orders be highly structured, directive and offer little flexibility once put in place.
Mr D was of the view that it is unlikely that the mother would be able to be flexible in her dealings with the father. He said that individuals with her stated disorder have a low threshold for receiving insults or threats, they see injustice and react extremely.
In respect of the Easter school holidays, the parties had a dispute about whether [X] should see both parents. The father wanted to comply with the court orders. The mother wanted some sharing of time and persisted about what she wanted. Mr D said that this is evidence of her rigidity in thinking. He said it would take a number of years of therapy and a high level of engagement by her to change. If she abandons treatment it is likely to persist for some time.
In respect of the mother’s alcohol consumption, Mr D said that she has had periods when she has been able to desist from alcohol consumption. He said there is some optimism about the future because she has done this, but not over the longer term. Alcohol abuse is specifically tied to her emotions and difficulty in coping. He noted in his 2016 report “alcohol has been a significant trigger and destabiliser for Ms Tresler and her ability to control her alcohol use is crucial to her long-term mental health and her ability to parent her daughter.”
If she engages in therapeutic treatment over two – four years, Mr D has some optimism about her prognosis.
Mr D indicated that [X] is likely to be at risk of harm in the mother’s care at times when she is having an emotional crisis. He said that there were no signs of [X] being at risk in the father’s care.
The mother accepts her diagnosis of having a borderline personality disorder. She conceded that she has had problems with alcohol abuse. She accepts the recommendations of Mr D in respect of her treatment. She is currently engaged with a psychiatrist, Dr A. She agreed to orders being made in respect of the treatment recommended by Mr D.
The mother, the father and the ICL did not challenge the evidence of Mr D. He is an experienced psychologist. I place weight upon his evidence.
There is a need to protect [X] when the mother is having emotional crises. The incident in January 2017 is an example of an emotional crisis and her behaviour after abusing alcohol, her difficulty in regulating emotion, and her lack of judgment, which placed [X] at risk of psychological and/or physical harm.
[X] also needs to be protected from witnessing any inappropriate interactions between her parents.
Section 60CC(3)(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
[X] is too young for any weight to be placed upon her views.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
[X] has a close and loving relationship with both parents. She also has a close relationship with the paternal grandmother. She has a good relationship with the father’s partner.
There is no evidence of [X]’s relationship with the maternal extended family.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parents have taken the opportunity to spend time and communicate with [X]. The mother made a unilateral decision in relation to [X]’s schooling recently.
In December 2016, the parties reached an agreement with the assistance of the ICL, that [X] would be enrolled in kindergarten at [School B] for 2017. They both signed the enrolment form.
The father agreed to pay the school fees. He paid for [X]’s school uniform, books and arranged for the payment of school fees. This cost him approximately $400. [X] was due to commence her first day at [School B] on 9 February 2017.
On 8 February 2017, the mother sent the father a text message stating that she had enrolled [X] in [School A]. She refused to send [X] to [School B] as previously agreed. She sent her to [School A] on 9 February 2017.
The father arranged for [X] to attend her first day of school at [School B] on the 15 February 2017. He was informed by staff that at approximately 12 noon on that day, the mother attended [School B] and collected [X]. She retained [X] in her care and would not allow the father to spend time with her. As a result, the father filed an application in a case. Ultimately, he agreed that [X] could remain at [School A].
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother has fulfilled her obligations to maintain [X].
The father currently pays child support of $40 per month. He gave evidence that the assessment is currently being reassessed. He was made redundant in June 2015. Prior to that, he was paying $688 per month child support. After he was made redundant, this was reduced to approximately $150 per month. When he was working in (location omitted) several years ago, he was paying $1,100 per month.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
[X] has been spending time with her parents on a shared care arrangement for around one month on an 8/6 basis in favour of the mother. [X] is doing well in this care arrangement. Mr D observed that she is comfortable with both parents. He saw [X] during the six days when she was in the father’s care. He did not observe anything to indicate that [X] was not coping with this arrangement.
The mother misses [X]. She needs to protect [X] from her emotions about this. She told Mr D that during her spare time without [X], she is rediscovering past interests, such as music. Mr D believes that while separation from [X] will be difficult, the mother has the ability to keep busy to help her cope.
Section 60CC(3)(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 mother is not able to drive, due to her recent drink-driving charge. It is likely that she will be suspended from driving for several years. Most changeovers are at school, which is within walking distance from the mother’s home. There will be some changeovers at the (omitted contact service) and at the (location omitted) police station. The mother will have sufficient notice about when that will occur to enable her to organise transport.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) 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;
The mother has the capacity to parent well. This is evidenced by [X] being a happy, intelligent child. The father gave evidence that when she is in good mood, or seems to be psychologically well, she is “a brilliant mum. She has a close and loving relationship with [X].”
The mother’s capacity to parent [X] is affected when she abuses alcohol and suffers from emotional crises. Her mental health has affected her parenting judgment at times. In January 2017, she drove her car with [X] in it, whilst intoxicated. She has behaved aggressively in [X]’s presence. This places [X] at risk of psychological and/or physical harm.
The father has a capacity to provide for all [X]’s needs. The paternal grandmother and the father’s partner can assist him with school pick-up and drop-off on occasions when needed. The father has made arrangements for [X] to attend (omitted) Childcare and (omitted) Childcare on days when she is not at school. She will be in full-time school next year.
Section 60CC(3)(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
This subparagraph is not relevant.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
This subparagraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I consider that the father has demonstrated a responsible attitude to parenting.
The mother’s alcohol abuse has meant that she has behaved irresponsibly as a parent. In October 2012, the police assisted the father to take [X] into his care due to the mother’s intoxication. She has been convicted of drink-driving on three occasions. In January 2017 she behaved irresponsibly by driving with [X] in a car while intoxicated. She was irresponsible by evading police and running from police when the car was intercepted. She has been charged with drink-driving and has yet to be sentenced. It is possible that she may be sentenced to a term of imprisonment.
The mother has been responsible when she sought an injunction restraining her from consuming alcohol when [X] is in her care. She has been responsible by agreeing to orders for treatment recommended by Mr D.
Despite the mother’s problems, she is committed to [X] and wants to do the best for her.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
A family violence incident occurred in August 2015 when the parties had a scuffle and the mother bit the father’s finger. The father asserted that the mother struck him in the head twice and she called the police. She started screaming and crying and alleged that the father had hit her. He was arrested and remanded overnight. After he made a statement, the police did not press charges. A police family violence order was issued in respect of both parties requiring them to “keep the peace.”
An interim restraint order was made against Mr L protecting the father, his partner and [X]. The father gave evidence that Mr L verbally abused him in front of [X] at a McDonalds’ car park. He referred to the IDM report dated 13 February 2017, which indicates that at the drive through at McDonalds, Mr L approached the father’s car, opened the door and started abusing and swearing at him stating that he is “fucked” and “going to cop it”.
Section 60CC(3)(l)
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 preferable to make orders that would least likely lead to the institution of further proceedings. I intend to make an order for a shared care arrangement, which should reduce any risk of harm posed to [X] by the mother. I also intend to make structured orders, which should reduce the prospect of further disputes between the parties. Changeover at the (omitted contact service) and at the (omitted) Police Station should also reduce conflict between the parties.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant.
Parental responsibility
The presumption of equal shared parental responsibility contained in s.61DA(1) of the Act does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or,
(b) family violence.
Further, the presumption may be rebutted where the Court is satisfied that “it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”[4]
[4] Family Law Act 1975 (Cth), s 61DA(4).
There is evidence to persuade me that there are reasonable grounds to believe that family violence has occurred. Consequently, the statutory presumption in s.61DA does not apply. This does not mean that an order for equal shared parental responsibility should not be made. There may, for example, be cases where family violence has been established, but where it is nevertheless found to be in the best interests of the child for the parents to have equal shared parental responsibility.
The father and the ICL sought an order that the father have sole parental responsibility for [X]. The mother sought an order that the parties have equal shared parental responsibility. An interim order for equal shared parental responsibility was made by consent on 23 M. 2017. Pursuant to section 61DB of the Act, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.
Mr D, in his April Report recommended that parental responsibility should be placed with the father in terms of major parenting decisions. He was of the view that this should occur, due to the mother’s lack of logical and rational decision-making during periods of emotional crisis. This is when she tends to be avoidant, choosing not to make a decision or to change her mind on past decisions. Also, the difference in the personalities of the parties has made it difficult for them to communicate.
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires that the parties “make a genuine effort to come to a joint decision”.[5]
[5] Ibid s 65DAC(3)(b).
“Major long‑term issues” means “issues about the care, welfare and development of the child”,[6] and includes, but is not limited to the child’s education, religious and cultural upbringing, health, name and living arrangements where it affects the child’s ability to spend time with a parent.
[6] Ibid s 4(1).
Situations where courts have ordered “sole” parental responsibility have generally involved intractable conflict between the parents, where ongoing communication and “genuine” consultation on long‑term issues affecting a child is unlikely. This may be the result of previous violence or abuse, or the ongoing fear of such abuse and/or violence.
In Lansa & Clovelly,[7] Murphy J noted that:
[t]here should … be good reason why, it is in the best interests of the children, for a finding that both parents ought not equally and jointly be involved in the sort of major decision embraced by the definition.[8]
[7] [2010] FamCA 80, [154].
[8] Ibid.
His Honour said that “high conflict can be a good reason” as to why a Court would not order equal shared parental responsibility, particularly where “one, or both, parents are affected by issues such as drug or alcohol addiction, mental health issues and the like”.[9] However, in that decision it was found that on balance, the children’s best interests were served by “having each of their polarized parents having input into the major long-term issues affecting them”,[10] noting the previous co-operation and goodwill between the parents.
[9] Ibid.
[10] Ibid [155].
It is a serious step to make an order for sole parental responsibility. It will mean that the mother will have no rights, responsibilities and authority in respect of major long-term issues for [X].
In Oscar and Traynor,[11] Murphy J commented:
the exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children, particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a serious interference with the fundamental rights of a person.
[11] [2008] FamCA 95, [260].
His Honour continued:
It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in a co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children’s best interests. [12]
[12] Ibid [256].
The recent schooling dispute and the dispute about [X]’s time with the father over Easter demonstrated the difficulty the parties have communicating and reaching agreement. The dispute about the schooling demonstrated how the mother’s ill-health and alcohol abuse has led to problems in decision-making.
The mother has been [X]’s primary carer and has parented effectively, except during periods of emotional crises and alcohol abuse. In the past she has expressed reluctance to Mr D to engage in any kind of psychological therapy. However, she has now agreed to have treatment in the terms of his recommendations. She has agreed to orders in such terms. She has also agreed not to consume alcohol whilst [X] is in her care. Mr D has some optimism for her prognosis in the event that she undertakes such treatment over the next two, three or four years.
Notwithstanding the agreement by the mother to undertake therapy, and Mr D’s optimism, I am not persuaded by the evidence that the parties would be able to comply with the requirement pursuant to section 65DAC (3) of the Act to consult and make a genuine effort to come to a joint decision about major long term issues affecting [X]. I am of the view that the parties lack any kind of parental alliance or mutual trust. I am not satisfied that they are capable of making joint decisions about [X]’s long-term interests. Having regard to the personalities of the parties pointed out by Mr D, I consider that it is likely that there will be further disputes between the parties if an order for equal shared parental responsibility is made.
I consider that it is in [X]’s best interests that the father has sole parental responsibility for [X], with a requirement to make appropriate notifications to the mother.
I consider that it is in [X]’s best interests to live with the parties on an 8/6 shared care basis in favour of the mother. [X] has adjusted to this arrangement over the past month.
I am of the view that changeover should occur at school and at the (omitted contact service) or the (omitted) Police Station on other occasions. I do not consider the mother’s preference of a park to be appropriate, given the tensions between the parties, and the need to protect [X] from any conflict.
In respect of holidays and special days I consider it is in [X]’s best interests to spend time with each party in accordance with the proposals of the ICL, which were largely agreed by the parties.
I also consider it is in [X]’s best interests to make the injunctive orders sought by the ICL.
I am not persuaded that it is necessary to make the orders sought by the ICL to specify time with [X], if she is hospitalised.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 5 May 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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