Turner and Brown

[2014] FamCA 205

FAMILY COURT OF AUSTRALIA

TURNER & BROWN [2014] FamCA 205

FAMILY LAW – CHILDREN – Consent minutes – whether proposed consent minutes as signed by the parties during a trial are in the best interests of the child – whether the presumption of equal shared responsibility should be rebutted.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA.

APPLICANT: Mr Turner

RESPONDENT: Ms Brown

INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

FILE NUMBER: MLC 4102 of 2009

DATE DELIVERED: 6 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: 6 March 2014

JUDGMENT OF: Thornton J

HEARING DATE: 6 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Berry Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

Orders

IT IS ORDERED BY CONSENT:

1. All previous parenting orders be discharged.

2. The order for the appointment of the Independent Children’s Lawyer be extended to 30 June 2014 AND IT IS REQUESTED THAT Victoria Legal Aid provide funding for the Independent Children’s Lawyer until 30 June 2014.

3. BY CONSENT there be final orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. The solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within seven days.

5. All extant applications otherwise be dismissed and the matter be removed from the list of pending cases.

6. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS ORDERED BY CONSENT:

Upon the Undertaking of the Respondent Mother that she withdraws unequivocally all allegations of sexual abuse and physical abuse made by her against the Applicant Father, and upon the Undertaking of the parties given in person this day as follows:

That each parent themselves, their servants and agents that until each of the children B born … 2004, J born … 2008 and T born … 2010 cease their primary school education save in any professionally constituted environment and/or appointment I will convey to any child who raises the issue of these and the previous proceedings “after some days in Court with the help of the Judge, our lawyer and your special lawyer, Mummy and Daddy sorted everything out”, then orders be made by consent:

1. That the Father have sole parental responsibility for the children B born … 2004, J born … 2008 and T born … 2010 (collectively “the children”) in respect of educational and medical issues.

2. That the children live with the Father as from Thursday 6 March 2014.

3. The children spend time with the Mother:-

   During Term Time:

   a.each alternate week from the conclusion of school (or 3.30pm) on Thursday until the conclusion of school (or 3.30pm) the following Monday commencing 20 March 2014.

   b.By telephone each Tuesday and Wednesday between 6pm – 6.30pm commencing Tuesday 11 March 2014.

   c.At such other times as agreed by the parties in writing.

   Term Holidays:

   d.For one half of all school term holidays on week about basis by agreement and failing agreement, the first week, with the weekly cycle commencing on the last day of school at 6pm;

   e.For half of all the Christmas school holidays on a week-about basis by agreement and failing agreement, being the first week and each alternate week thereafter in each year;

   f.From 5pm on Mother’s Day Eve until 5pm on Mother’s Day, if the children are not otherwise in her care;

   g.From 3.00pm on 24 December 2015 until 3.00pm 25 December 2015 and each alternate year thereafter and from 3.00pm on 25 December 2014 until 3.00pm on 26 December 2014 and each alternate year thereafter;

   h.From 10am on Good Friday 2015 until 3.00pm on Easter Sunday 2015 and each alternate year thereafter;

   i.For three (3) hours on each of the children’s birthday’s as agreed between the parties and failing agreement, from 3.30pm until 6.30pm if the children are not otherwise in her care;

   j.For three (3) hours on the Mother’s Birthday (31 January) as agreed and failing agreement, from 3.30pm until 6.30pm if the children are not otherwise in her care; and

   k.At such other times as agreed by the parties in writing.

4. The Father’s time with the children be suspended:-

   a.For half of all school term holidays on a week-about basis by agreement and failing agreement, the first week;

   b.For half of all the Christmas school holidays on a week-about basis by agreement and failing agreement, the even numbered weeks;

   c.From 5pm on Mother’s Day Eve until 5pm on Mother’s Day;

   d.From 3.00pm on 24 December 2015 until 3.00pm 25 December 2015 and each alternate year thereafter and from 3.00pm on 25 December 2014 until 3.00pm on 26 December 2014 and each alternate year thereafter;

   e.From 10am on Good Friday 2015 until 3.00pm on Easter Sunday 2015 and each alternate year thereafter;

   f.For three (3) hours on each of the children’s birthday’s as agreed between the parties and failing agreement, from 3.30pm until 6.30pm if the children are not otherwise in her care; and

   g.For three (3) hours on the Mother’s birthday (31 January) as agreed and failing agreement, from 3.30pm until 6.30pm.

1. That the Mother’s time in paragraph three (3) be suspended:-

   a.For three (3) hours on the Father’s birthday (21 July) as agreed and failing agreement, from 3.30pm until 6.30pm;

   b.Should any of the children’s birthdays fall during the Mother’s time with the children, they shall spend three (3) hours with the Father from 3.30pm – 6.30pm.

   c.From 5pm on Father’s Day Eve until 5pm on Father’s Day;

   d.From 3.00pm on 25 December 2015 until 3.00pm on 26 December 2015 and each alternate year thereafter and from 3.00pm on 24 December 2014 until 3.00pm on 25 December 2014 and each alternate year thereafter; and

   e.From 10am on Good Friday 2014 until 3.00pm on Easter Sunday 2014 and each alternate year thereafter.

2. At all other times the children live with the Father and the children telephone the Father each Wednesday at 6.00pm – 6.30pm when in the Mother’s care pursuant to these orders.

3. The Mother’s time in paragraph 3(a) be suspended during school holidays and resume after school holidays as if that time was uninterrupted.

4. All changeover shall take place at the children’s school save for special occasions when changeover shall occur at McDonalds, on C and D Street, Suburb E.

5. The Mother and her servants or agents be and are hereby restrained from changing the children’s names, or using different names, from their names as referred to in paragraph one (1) of these orders.

6. The Mother and the Father for themselves, their servants, and agents specifically including as such servants and agents their respective parents, siblings and adult members of their representative households be and are hereby restrained from:-

   a.Save and expect in any professional setting discussing these proceedings with and/or in the sight and/or hearing and/or presence of the children or any one of them.

   b.Engaging in any conduct including Facebook or other social media which denigrates and/or insults and/or demeans the other parent, members of the household of and/or family members of the other parents household, and/or is capable of being construed as continuing “to engage in a deeply distrustful and hostile relationship” and IT IS DIRECTED that each of the Father and the Mother draw the attention of any person or persons hereinbefore defined as “Servant and/or Agent” to the existence of this Order.

7. Each parent be at liberty to attend and participate in any school and kindergarten events including information nights, parent teacher interviews and other events that parents ordinarily attend and receive any related information including newsletters and school photographs that parents ordinarily receive, and the father authorise the school to provide at the Mother’s expense all school reports and other information pertaining to the children.

8. Each parent notify the other in the event of the Children or any of them suffering a serious medical injury or illness while in their care and authorise any treating doctor to be at liberty to discuss with each parent the child or children’s illness.

9. Each parent be authorised to consult with any Medical Practitioner or allied health professional treating the Children or any of them.

10. The Independent Children’s Lawyer be at liberty to provide a copy of this Order and the report of Family Consultant, Ms S dated 3 February 2014 and to discuss these proceedings and the interests of the children with any one or more of the following:-

    a.The Principal or delegate of the Principal of any school attended by the children.

    b.The Director and/or delegate of the Director of any pre-school attended by the children.

    c.The Manager, and/or delegate of the Manager of any Childcare Centre attended by the children.

    d.Any health and/or allied health professional assisting any one or more of the children.

    e.Any officer of the Department of Human Services or an agency to which the family is referred by the said Department.

11. That within fourteen (14) days of these Orders, the Father shall ensure B attends a Counsellor for non-reportable therapeutic counselling at the cost of the Father, and the Order made today be given to the said counsellor and noted “the Mother does not accept all the matters contained in Ms [S’s] report and Ms [S] was not cross-examined”.

12. That paragraph ten (10) of Orders made 1 November 2012 be discharged as of 30 June 2014.

13. That both parties be and are hereby restrained from bringing the children or any of them into contact with Ms A.

14. Each parent is to inform the other fourteen (14) days prior to any change in their residential address where the children stay pursuant to these Orders AND advise of any change to their current mobile telephone number and such to be used for parenting matters only.

15. All applications be otherwise dismissed.

16. That pursuant to Section 65DA and 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

17. Reserve the Father’s costs of Trial and prior reserved costs.

AND THE COURT NOTES:

In the event either parent has a special family function, they shall notify the other parent no less than 10 days prior to said event, and the children’s attendance at said function shall not be unreasonably withheld.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Brown has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4102 of 2009

Mr Turner

Applicant

And

Ms Brown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern final parenting arrangements for three children, B, aged nine years, J, aged six years, and T, aged three years.  The children currently live with the mother and spend alternate weekends with the father.  This matter is characterised by numerous allegations by both parties of sexual, emotional and psychological abuse of the children.  The parties have been involved on and off in litigation in this Court since 2009. 

Background

1. The mother is 31 years of age and is engaged in home duties.  The father is 35 years of age and works as a welfare supervisor.  The parties began living together in June 2004 when the mother was pregnant with B.  B is not the biological child of the father.  The father was present at B’s birth and has raised her as his own child.  B does not have a relationship with her biological father.  The parties separated in April 2010 when the mother was pregnant with T. 

2. The mother lives with the children and her new partner, Mr F.  The mother receives social security benefits and also makes goods which she sells at markets and online.  Mr F is the father of five children who range in age from six to 15 years.  His children live primarily with their mother and spend alternate weekends with Mr F. 

3. The father has not re‑partnered.  He currently lives with his father and his father’s new wife in his father’s home.  The father is employed as a welfare supervisor.  The father is employed on a permanent part-time basis working approximately 20 hours a week.  The paternal grandmother assists the father by caring for the children while the father is at work. 

4. The children are currently living primarily with the mother and spending time with the father on alternate weekends from 6.00 pm Thursday until 6.00 pm Monday pursuant to orders made by consent before Senior Registrar FitzGibbon on 15 May 2013. 

5. In previous proceedings Ms G prepared a Family Report dated 7 April 2011 and then an updated Report dated 21 November 2011.  The parties agreed to final orders by consent on 5 December 2011.  These orders provided for the children to live primarily with the mother and spend time with the father including one week of each term holiday. 

6. The father consented to the 2011 final orders in the context of allegations made by the mother that B had been sexually abused by him and that the father had raped the mother resulting in T’s conception.  It was noted by the Court that the mother agreed not to pursue any of the disclosures alleged by the children but she was at liberty to raise them with Allied Health professionals treating the children. 

7. Subsequent to the making of the final orders, the father sought to reopen the proceedings by filing an initiating application on 26 September 2012.  His application was supported by his affidavit filed 26 September 2012 and an affidavit by Ms A filed 26 September 2012. 

8. In her affidavit Ms A deposed that the evidence she had given in her previous affidavits and in her police statement had been untrue.  Senior Registrar Fitzgibbon made interim consent orders on 30 November 2012, which provided, amongst other orders, for the children to live with the parents on a week about basis and for the parties to attend a psychiatrist for the purposes of the preparation of a psychiatric report. 

9. Dr H prepared psychiatric assessments of both parties dated 25 January 2013.  His report recommended that the mother follow up with further antidepressant medication, which she has done.  He also essentially concluded that there was insufficient evidence to suggest that ongoing full-time, part or part-time care by either parent of the children was contraindicated for psychiatric reasons.  However, Dr H stated that if the father’s version of events is correct, the mother may well be suffering from significant depression as well as having problem personality traits. 

10. Pursuant to further Court orders made by Senior Registrar FitzGibbon on

    
    

    14 March 2013, the parties participated in a Family Report prepared by

    
    

    Ms I who interviewed the parents, B and J.  In her Family Report dated 29 April 2013, Ms I recommended that the children recommence living primarily with the mother and spend time with the father on alternate weekends from Thursday evening to Monday evening.  Ms I also recommended that the parties participate jointly in post-separation counselling and that B participate in child inclusive counselling. 

11. The mother has completed a post-separation parenting course.  For various reasons, which seem to be due to communication problems, B has not yet seen a counsellor.  The proposed consent orders provide for the father to implement this recommendation.  The father has also completed a post-separation parenting course. 

12. On 15 May 2013 at a hearing before Senior Registrar FitzGibbon, the mother was represented by counsel at Court and gave an undertaking to the Court that she withdrew all allegations of sexual and physical abuse by the father.  On the same day, the parties consented to orders providing for the children to live with the mother and spend time with the father each alternate weekend from 6.00 pm Thursday until 6.00 pm Monday.

13. Orders were made by Cronin J on 4 September 2013 listing the matter for trial and for a further Family Report to be completed. This was subsequent to the father making a further application to this Court due to the revelations of Ms A.  Ms S completed a Family Report dated 3 February 2014.  Ms S interviewed the parties, the paternal grandmother, the mother’s new partner, B and J for the purposes of preparing the Family Report.  Ms S also observed each of the parents with the three children, but did not interview T individually due to his young age. 

14. In her Family Report dated 4 February 2014, Ms S recommended that if the Court determines that the mother poses an ongoing risk to the children of fabricating allegations against the father in an attempt to undermine their relationship with their father, then the Court should order that the children live primarily with their father and spend limited time with their mother for an extended period of time.  However, if the Court finds that the father poses an ongoing risk of abuse to the children, then Ms S recommended that the father’s time with the children be restricted.  I note that Ms S seems to have been unaware of the withdrawal and retraction of the allegations that were made by the mother. 

15. Ms S also recommended that if there was a finding by the Court that one of the parties had been lying, that party should engage in psychiatric or psychological treatment.  Ms S also recommended that B participate in therapeutic counselling and that consideration be given to J attending counselling as well. 

The current proceedings

1. This trial began on 27 February 2014 and the mother was unrepresented after having had legal representation until January 2014.  She was ineligible for legal aid and was self-represented in the trial.  The mother essentially sought that the current arrangement continue and that she be permitted to change the children’s school to a school closer to her home. 

2. The father sought sole parental responsibility and that the children live with him and spend alternate weekends with the mother and half the school holidays.  The father did not support the recommendation of Ms S that if the Court orders that there be a change of residence, that the children should spend limited time with their mother for an extended period of time in order to solidify their new living arrangements.  The Independent Children’s Lawyer supported the father in his application for a change of residence. 

3. Yesterday, on the fifth day of the trial, the mother proposed that the children reside with the father and spend time with her each alternate weekend from the conclusion of school on Thursday until the following Monday commencing 20 March 2014.  The mother put this proposal in writing in the form of Minutes of Proposed Consent Orders, which were provided to the father and to the Independent Children’s Lawyer on this day.

4. The parties and B met with the Family Consultant, Ms S, this morning to discuss the proposed living arrangements.  This meeting went as well as could be expected.  The Independent Children’s Lawyer stated that the parents participated responsibly in the meeting with Ms S and that the new arrangements were explained to B who was concerned to continue to spend time with the children of the mother’s partner, Mr F. 

1. I am satisfied that the mother has had an opportunity to obtain legal advice from a lawyer familiar with her circumstances since yesterday and that the mother has had sufficient time yesterday afternoon, overnight and this morning to reflect upon the proposals which she outlined in writing initially to the other parties and to consult with her partner and mother. 

2. Having read all the reports of the Family Consultants, Ms G, Ms I and Ms S and accepted the submissions of all parties in support of the proposed consent orders which have been signed and filed with the Court, I am satisfied that the orders agreed are in the best interests of the three children.  In coming to this conclusion, I have also relied upon my observations of the witnesses in Court, the father who was cross-examined, his mother and the mother of the children.  I have relied upon the objects of the Family Law Act1975 (Cth) (“the Act”) under s 60B and the primary and additional considerations outlined under s 60CC(2) and s 60CC(3) of the Act.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for parents to have equal shared parental responsibility. This presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility. I am satisfied that in the circumstances of the history of this case and the evidence I have heard that it is appropriate that the presumption under s 61DA of the Act for equal shared parental responsibility is rebutted having regard to the best interests of the children. I am satisfied that there has been a complete breakdown of communication between the parties because of the serious allegations made by the mother against the father and then retracted over a significant period. I am satisfied that it would not be in the best interests of the children for the parents to continue to have equal shared parental responsibility for the children. The breakdown in communication for the purposes of shared parental responsibility is irretrievable.

4. I am satisfied that it is appropriate that, as has been agreed between the parties and supported by the Independent Children’s Lawyer, the father have sole parental responsibility for the children and that the orders should be made in the terms of the agreed proposed consent orders.

5. I make the orders in the terms of the orders that have been agreed by the parties but I note that the orders include undertakings of the parties.  The mother has undertaken to withdraw unequivocally all allegations of sexual abuse and physical abuse made by her against the applicant father.  Each party has also undertaken that they themselves, their servants and agents will convey to any of the children, until each of the children cease their primary school education save in any professionally constituted environment or appointment, who raises the issue of these and the previous proceedings that “after some days in Court with the help of the Judge, our lawyer and your special lawyer, Mummy and Daddy sorted everything out.”

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 6 March 2014.

Associate: 

Date:  31 March 2014