Vallans and Vallans

[2018] FCCA 3841

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALLANS & VALLANS [2018] FCCA 3841

Catchwords:
FAMILY LAW – Parenting – where a contravention application was filed – where there is an oral application for sole parental responsibility – where there are communication issues – where an order for sole parental responsibility is made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1)(d), 60B(2)(d), 60CA, 61DA, 61DA(1),

Applicant: MR VALLANS

Respondent: MS VALLANS

File Number: BRC 7407 of 2013

Judgment of: Judge Middleton

Hearing date: 22 November 2018

Date of Last Submission: 22 November 2018

Delivered at: Brisbane

Delivered on: 22 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Ehlers

Solicitors for the Applicant: Steindl Bradley & Associates

The Respondent in person

ORDERS

1. That order 1 of the Orders issued 27 January 2015 be discharged.

2. That the mother have sole parental responsibility for the children [B] born … 2010 and [C] born … 2012 but when making any decisions about long term issues the mother must;

   (a)Inform the father in writing of the decision to be made;

   (b)Invite written comment from the father;

   (c)Take such comments into account when making the decision;

   (d)Inform the father in writing of the decision.

3. That the mother in exercising her sole parental responsibility the mother is restrained by injunction from changing the children’s names and from relocating their residence such that it interferes with the children’s time with their father pursuant to the orders made 27 January 2015.

4. That the father is to ensure that the children attend any Grand Final, grading examinations, recitals or presentations relating to the children’s extracurricular activity that occurs on a weekend.

5. All outstanding applications are dismissed and the proceedings are removed from the active pending cases list.

IT IS NOTED:

(A)That pursuant to s.65DA(2) 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 the document attached to these orders titled “Parenting orders – obligations, consequences and who can help”.

IT IS NOTED that publication of this judgment under the pseudonym Vallans & Vallans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRC 7407 of 2013

MR VALLANS

Applicant

And

MS VALLANS

Respondent

REASONS FOR JUDGMENT

Ex Tempore:

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting application involving two children, [B] aged eight, and [C] aged five, soon to be six.  Their parents were in a relationship, cohabitating in 2008, marrying in 2010, and separating in May of 2013. 

3. Final orders were entered into by consent on 27 January 2015.  On 21 December 2015, the father filed a contravention application.  That application was ultimately dismissed.  On 13 May 2016, the father filed a second contravention application, alleging that the mother was not facilitating telephone time in May. 

4. Along the way of that application, the mother made an oral application for an order that she have sole parental responsibility for the children. 

5. The father does not wish to prosecute his contravention application today. 

6. Accordingly, the only issue before me is whether I should make the order the mother seeks for sole parental responsibility. 

7. The mother relied upon two affidavits filed on 14 February 2018 and 19 November 2018. 

8. The father relied upon one affidavit filed on 12 November 2018, and his case outline filed on 4 August 2017. 

9. Both parties relied upon the report of Ms G, dated 26 August 2016.

10. As this is an application for a parenting order, part VII of the Family Law Act is in play.

11. The objects and principles underlying part VII are set out in section 60B. Relevantly, under the objects, section 60B(1)(d) an object is:

    Ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

12. One of the relevant principles underlying that object is found at section 60B(2)(d). That is:

    Parents should agree about the future parenting of their children.

13. As this is a parenting case, the best interests of the children are my paramount consideration.[1] As this case involves an issue about parental responsibility, I must have regard to the provision of section 61DA. Section 61DA(1) provides that:

    the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.

    [1] section 60CA

14. There is an exception to that presumption in that the presumption does not apply if I am satisfied that there has been family violence or abuse.  There is no evidence of family violence or abuse save for paragraph 6(c) of the affidavits of 19 November and 14 February 2018, and paragraph 33 of the affidavit of 19 November 2018 of the mother’s.  Those paragraphs simply state that there was family violence, but it is not otherwise particularised. 

15. The presumption, in section 61DA(1) can be rebutted pursuant to section 61DA(4) that provides:

    The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.

16. It follows that the mother must be able to persuade me, by reference to the evidence, that it is not in the best interests for the parents to have equal shared parental responsibility.  I say this due to the limited evidence available to me regarding family violence.  The one line in both affidavits and a short mention of it in paragraph 33 does not persuade me that I should make a finding that there was family violence between the parents. 

17. The mother annexes a text exchange between the parents at A…3.  This exchange relates to [B]’s sporting activity I.  The mother asks the father to change his weekend so that [B] can participate in her sporting activity I practice.  The father responds that he cannot change the weekend and the mother ultimately says, “No worries”. 

18. At annexure A…4, the mother provides evidence of a text message exchange relating to [C]’s Martial arts.  It reads:

    "[C] had a free trial at Martial arts today and enjoyed it". 

19. The father responds:

    "Okay.  Good to see he enjoyed it.  Can we look at some other type of sport for [C] as Martial arts is more violent than sporting activity K.  Thanks for the dates for [B]."

20. The mother responds:

    "It is non-contact at this age and it is all about teach self‑discipline, coordination and self-confidence.  He has another free session at ….. community Centre at 1545.  You’re more than welcome to check it out."

21. And the father replies:

    "Okay.  All good".

22. At annexure A…5 to the mother’s affidavit, is another text exchange. It seems the mother wanted [B] to attend a disco and asked the father to pick her up at a later time.  The father said he could not do this as there was insufficient warning.  In this instance, the parents concede that the child was upset at not attending.

23. The mother complains that the father’s responses are not timely and that he is rude to her.  Whilst I acknowledge that there was three weeks between texts, in the circumstances, I am not satisfied that the response was not timely.  I also do not accept that the exchange is rude. 

24. The exchange, however, does show that the parents are in conflict.  The Court has had to intervene on two occasions due to the parents not being able to reach an agreement. 

25. On 26 August 2016, Judge Howard made an order about attending weekend times so [B] could attend sporting activity I.  On 28 June 2018, whilst no order was made, Chief Judge Alstergren made a notation to the effect that the father had agreed to take [B] to sporting activity I. 

26. The mother says that communication has not been as bad during the last six months[2], but suspects it is because of the Court dates and that the father knows that she is seeking an order for sole parental responsibility. 

    [2] Paragraph 27 of affidavit filed 19 November 2018

27. The mother says she is worried about future communication.  The mother gives evidence that the father has asked the police to do two welfare checks, based upon his need to control.[3] 

    [3] Paragraph 34 of affidavit filed 19 November 2018

28. The father provides evidence in his affidavit filed 12 November 2018, that the parents can communicate effectively.[4] 

    [4] Paragraphs 27 to 45

29. Having considered that evidence, I am persuaded that although the parents do not immediately agree, they are able to agree in the end, noting, of course, the interventions by the Court regarding [B], and noting the nature of the correspondence.

30. The evidence of Ms G was not challenged by either party.  Ms G had compiled a previous report in February 2014.  At that time, it was assessed by her that communications issues were likely to pose future difficulties to the co-parenting relationship without the parents learning additional communication skills and seeking to modify their attitudes regarding co-parenting. 

31. At paragraph 38 of her report dated 26 August 2016 Ms G opines that the updated information available to her since the 2014 report, indicates that communication issues remain a recurring challenge for the parents. 

32. Her view is that the parents’ perception of what the other parent thinks of their parenting ability contributes to a decreased capacity for productive co‑parenting communication.[5] 

    [5] paragraph 39 Ms G 2016 report

33. At paragraph 41, Ms G writes:

    “The history of the parties’ perceptions of mistrust of the other party, however, could lead to either or both parents demonstrating a pattern of misusing decision‑making power to coerce or control the other party.  The risk of this increasing would be assessed as high if each party continues to experience the other as devaluing or discrediting their role in parental decision‑making.  There appears to be a pattern of this characterising these parents’ views of each other.” 

    “In this case, the continuation of shared parental responsibility could lead to a decreased focus on the children’s needs and best interests and could become a focus of parental control.  This would not be in the children’s best interests as this would increase their exposure to conflict, would result in delayed decision‑making occurring and is highly likely to result in ongoing adversarial processes being required to resolve parenting decisions.” 

34. Ms G is of the view that Ms Vallans should have sole parental responsibility if parental responsibility is not to be shared.[6] 

    [6] paragraph 42 Ms G 2016 report

35. At paragraph 43, Ms G writes:

    “Should the Court determine that Mr and Ms Vallans do not demonstrate a high likelihood of resolving parenting differences within a reasonable timeframe and without ongoing external decision‑making processes, it is likely that Ms Vallans, holding sole parental responsibility, will best promote the children’s needs and best interests.  Requiring her to present Mr Vallans some alternatives to choose from within a set timeframe, with her being at liberty to make the final decision, will promote his opportunity to remain involved and for the children to experience his contributions as being valuable.” 

36. An assessment of all of the evidence establishes that the pattern of mistrust, stressful communication, belittling and devaluing each other or a perception that their parenting role is being devalued is continuing. 

37. I am concerned that both parents, at times, lose child focus and that the focus is shifting towards parental control.  The children are with the mother the majority of the time.  She says she is stressed by the communication between the parents and, at times, does not answer the father to avoid stress.

38. The children, being in the mother’s care most of the time, would pick up on that stress.  Ms G opines that exposure to stress and conflict is not in the children’s best interests as it would result in delayed decision‑making occurring and is highly likely to result in ongoing adversarial processes being required to resolve parenting decisions. 

39. The father first commenced proceedings on 2 September 2013.  [B] was very nearly three and [C] was nine months.  We are now five years down the line and the parents are still before the Courts.

40. It seems Ms G opinion has a very solid foundation and I am persuaded that the conflict between the parents needs to be addressed. 

41. Both parents have completed a parenting program.  Both parents’ style of communication, as evidenced in the text messages, is still inappropriate at times. 

42. As I pointed out, the parents have been in dispute for almost all of [C]’s life and the vast majority of [B]’s life.  Within months of final orders being made by consent, the father filed a contravention followed by another the year after.

43. The nature of the contraventions alleged themselves are testament to the dysfunctional relationship between the parties. 

44. In those circumstances, I am satisfied that these parents do not demonstrate a high likelihood of resolving parenting differences, and they are parenting differences. 

45. I am further satisfied that a continuation of equal shared parental responsibility will lead to further conflict for these children.  They have been subject to proceedings, as I say, most of their lives.

46. The father is concerned that the mother will change the children’s name if she has sole parental responsibility.  There is nothing in the mother’s material to suggest this will occur and this is an example, in my view, of the father’s mistrust of the mother. 

47. However, I am of the view that the children’s name should not be changed and that it is in their best interests for their names to remain unchanged. 

48. The mother acknowledged, in cross‑examination, that she does not expect the children to play weekend sport on the weekends that the children are with their father.

49. The children are not currently enrolled in weekend sport.  They may be in the future.  The mother wants the father and the children to attend grand finals and other special weekend events connected to the extra‑curricular activities and an order acknowledging this is warranted, in my view, and will avoid further conflict. 

50. For these reasons, I am satisfied that the orders I have made are in the children’s best interests.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 20 December 2018