Vaughan and Jacobson

[2014] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAUGHAN & JACOBSON [2014] FCCA 825

Catchwords:
FAMILY LAW – Interim parenting orders sought – allegations of family violence.

Legislation:  

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 65DAA

Applicant: MR VAUGHAN

Respondent: MS JACOBSON

File Number: MLC 9346 of 2013

Judgment of: Judge Hartnett

Hearing date: 28 March 2014

Delivered at: Melbourne

Delivered on: 28 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Hutchings

Solicitors for the Applicant: Gold Stone Family Lawyers

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent: CE Family Lawyers

THE COURT ORDERS THAT:

1. The matter be adjourned to 15 December 2014 at 10.00am for final hearing (with an estimated hearing time of two days).

2. The parties file and serve any further affidavit material they intend to rely upon not less than 14 days prior to the final hearing.

3. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the child of the relationship X born (omitted) 2010 attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

4. The family report deal with the following matters:-

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;   

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)any other matters that the family consultant considers important to the welfare or best interests of the said child.

5. The parties send copies of all of their Court documents to the family report writer within seven days of being requested to do so by the family report writer.

6. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.

THE COURT ORDERS BY CONSENT THAT:

1. The mother and father have equal shared parental responsibility for the child.

2. The child live with the mother.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The child spend time and communicate with the father as follows:-

   (a)each Thursday from 5.45pm until 7.30pm commencing on 3 April 2014;

   (b)from 10.45am until 5.00pm on Saturday and from 10.45am until 5.00pm on Sunday for three out of every four weekends commencing 29 March 2014; save that the father’s time shall be suspended on Sunday 20 April 2014 and the child spend time with the father in lieu thereof on Monday 21 April 2014 from 10.45am until 5.00pm;

   (c)on Father’s Day if the child is not otherwise in the father’s care from 10.45am until 5.00pm and the father’s time shall be suspended from 10.45am until 5.00pm on Mother’s Day so that the child may spend time with the mother;

   (d)upon the father finding and moving into appropriate accommodation and complying with order 11 herein, order 9(b) herein be discharged and in lieu thereof, the child spend time with the father from 10.45am on Saturday until 5.00pm on Sunday for three out of every four weekends in the same cycle as provided in order 9(b) herein; and

   (e)at such further and other times as agreed in writing between the parties.

2. Changeover take place outside of (omitted) Police Station.

3. The father shall provide the mother with the following upon finding and moving into appropriate accommodation:-

   (a)the address of the appropriate accommodation; and

   (b)a photograph of the child’s separate bedroom and bed.

4. Without admitting the necessity for same the father consents to be restrained from:-

   (a)abusing, insulting, harassing or otherwise denigrating the mother or members of the mother’s family or friends in the presence or hearing of the child;

   (b)for a period of 12 hours prior to or during his time with the child consuming alcohol, using or taking any drug of addiction or misusing or abusing any drug whether or not prescribed;

   (c)knowingly exposing the child to any person who has consumed illicit drugs or alcohol to excess;

   (d)allowing the child to use any electronic devices that has pornographic material on it;

   (e)sleeping in a bedroom or bed with the child and another adult; and

   (f)using physical force to discipline the child.

5. Without admitting the necessity for same, the mother consents to be restrained from abusing, insulting, harassing or otherwise denigrating the father or members of his family or friends in the presence of or hearing of the child.

AND THE COURT NOTES THAT:

1. “Appropriate accommodation” is accommodation that provides the father and the child with separate bedrooms, in which the child has her own bed, and in which the father lives with no other adult, save his partner.

2. The father intends to move to “appropriate accommodation” within two months of the making of these Orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 9346 of 2013

MR VAUGHAN

Applicant

And

MS JACOBSON

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings come before the Court this day in a duty list and on an Initiating Application filed by the Applicant father on 13 March 2014 seeking parenting orders with respect to the parties’ child X born (omitted) 2010 (‘the child’).  The parties’ daughter is now aged three years.

2. That application of the father is supported by evidence as set out in his Affidavit sworn 12 March 2014.  The application came before the Court with time being abridged and on 19 March 2014.  On that day, the Court determined to hear only that part of the father’s application which sought that the parties’ daughter be placed on the Airport Watch List enforced at all points of arrival and departure in the Commonwealth of Australia.  Counsel appeared for the father, and the mother was a litigant in person.  The Court ordered that the parties’ daughter was restrained from leaving the Commonwealth of Australia, and that each of the parties were restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia, and further, it was requested that the child’s name be placed on the Airport Watch List.  Those orders were made by consent and until further order.

3. The parties agreed, relevantly, also for an order to be made, pursuant to s.11F of the Family Law Act 1975 (Cth) (‘the Act’) that the parties and their child attend upon an appointment with a family consultant, with times arranged for 21 March 2014. There was to be a written report. That has occurred, and the Child Inclusive Conference Memorandum to the Court dated 21 March 2014 (‘the Report’) is before the Court in evidence this day. The Report was prepared by Mr N, Family Consultant.

4. At the time of interview and preparation of the Report, the father’s material was before the Court in the form of his Affidavit sworn 12 March 2014, but there was no responding material by the mother, given the short service of the application.  In the Orders that were made on 19 March, the mother was ordered to file and serve a response and affidavit by 28 March 2014, and all extant applications were adjourned to this date (being 28 March 2014).  Thus, this matter has come before the Court in a very short time span and already on two occasions.

5. There is also on the Court file, and which was referred to in submissions this morning, an Application for Divorce filed by the mother on 29 October 2013.  I refer briefly to that document at the outset, given that its contents were referred to in the submissions made by counsel for the father. Otherwise, the mother has complied with the Orders of 19 March 2014 in the filing of a response and affidavit.  I shall refer later to the orders which she seeks.

6. The Application for Divorce filed 29 October 2013, which was an application made solely by the mother, set out therein a marriage date between the parties of (omitted) 2009 in Melbourne, Australia, and a separation date of October 2011, and as to the date:-

   “I don’t remember the date.”

7. The mother set out in that sworn document, in which she deposed that the facts of which she had personal knowledge were true, and all other facts were true to the best of her knowledge, information, and belief, that the parties lived together in the same home but not as husband and wife in the period from October 2011 to December 2011.  Thereafter, she swore that the parties had not lived together and not as husband and wife.  The mother obtained a Divorce Order on the basis of the evidence presented by her to the Court in that Application.  The Affidavit sworn by her in respect of those matters was sworn on 15 July 2013.

8. In these proceedings, as I say, the mother has filed now a response and affidavit. These documents were not available to the Family Consultant. In the Affidavit sworn by the mother on 27 March 2014, she says, in paragraph 3:-

   “I commenced cohabitation with the applicant in 2007.  We married on (omitted) 2009 and separated in July 2013.”

   In paragraph 13, the mother makes allegations against the father, alleging that he became aggressive and was violent to her on multiple occasions, including those that are set out in that paragraph.  In respect of a number of occasions stated in paragraph 13, they are occasions when allegedly the parties were separated and no longer living with each other, although, in the context of the Affidavit sworn as recently as yesterday by the mother, it would appear that she is deposing to facts which she claims to now be true and correct, wherein the parties were not separated.  That remains a matter for another day, but there is a stark factual conflict (inconsistency) in the sworn evidence of the mother, which is concerning.

9. There is no dispute between the parties that each of the parents should have equal shared parental responsibility for the child and as a final parenting order. The mother importantly does not seek that the presumption set out in s.61DA of the Act should be rebutted. Likewise, there is no dispute between the parties that the child should live with the mother, and that also should be made as a final parenting order. There also does not seem to be, in light of the equal shared parental responsibility order, any suggestion that the parties’ daughter should spend equal time with each of her parents. Neither the mother nor the father seek it. That is, of course, a matter that the Court, pursuant to the Act, must consider.

   Section 65DAA of the Act provides:-

   “Equal time

   (1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2) Subject to subsection (6), if:

   (a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child's daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

   Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”

10. The mother and father are in agreement that their daughter will live predominantly with her mother and will spend time and communicate with her father in a more limited way than week-about time spent with. It has been substantial and significant time, but the mother puts that in issue. The Court is required to consider the best interests of the child as the paramount consideration as set out in s.60CA of the Act. The means by which the Court is mandatorily required to do so is set out in s.60CC of the Act.

11. The primary considerations are set out in s.60CC(2) of the Act and the additional considerations are set out in s.60CC(3) of the Act as follows:-

    “Primary considerations

    (2) The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (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).

    Additional considerations

    (3) Additional considerations are:

    (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;

    (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);

    (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;

    (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;

    (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;

    (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;

    (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;

    (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;

    (h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii) the likely impact any proposed parenting order under this Part will have on that right;

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    (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;

    (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;

    (m) any other fact or circumstance that the court thinks is relevant.”

    In particular, s.60CC(2)(b) needs consideration in the context of the allegations made in this case.

12. The Court is satisfied that it is beneficial to the parties’ daughter that she have a meaningful relationship with each of her parents, and her parents have been mindful of that and acted in that way since their separation, if I take that to be July 2013. The mother has more recently deposed to this date as being factually correct and truthful and it is a date agreed to as the date of separation by the father.  The parties themselves, without the need for judicial intervention, worked out an arrangement whereby their daughter would spend time with her father each week, and so develop a meaningful relationship. They both promoted this.

13. What has occurred to change the parental acquiescence of the mother is that on or about 1 March this year the mother entered the father’s premises unannounced, uninvited and through the back door. An altercation occurred, which was both physical and verbal, as alleged by each of the parties, one against the other.  Each allege the other engaged in family violence; each allege the other assaulted them.  There are intervention order applications which remain outstanding as a result of that episode, and those matters will proceed in the fullness of time in the local Magistrates Court.  Prior to that time there were no intervention orders sought or made between the parties. 

1. The various allegations made by the mother in her affidavit material as to past actions of the father had not led to any intervention order being sought by her at any time, nor to any supervision of the time spent between the child and father as imposed by her, or as discussed by her with the father. It is most unfortunate the mother attended at the father’s premises on 1 March 2014 and in the manner that she did. The mother now says that there is a need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. She deposed in her affidavit to incidents of alleged family violence. She concludes that those matters mean that the father should not spend time with his daughter other than supervised, despite what has occurred since the parties’ separation. That has been consistent, ongoing, weekly, unsupervised, including overnight time spent with, between the father and child and with the mother’s consent. The father denies categorically the violence alleged against him by the mother, save that he admits to damaging property on one occasion.

2. There is clearly some hostility between the parties. Their relationship is poor currently, and their ability to communicate with each other is not good.  The mother put various derogatory and possibly defamatory statements concerning the father and her history with him on her Facebook pages, which have been annexed to the Affidavit of the father sworn on 12 March 2014 and marked annexure “B”. An example is as follows:-

   “First he came after me, never give up when I refused him, cut large area of his arm, and promised in that blood he is going to be with me till the end. I explained I'm already been hurt, I have kids, he is younger to me and I am not the one for him, he said he has no one and dad doesn't send money for studies any more, b coz he fail his subjects, he said his parents never loved him and treated like shit in his whole life. He said if I refuse him he has no life and his only option is leaving from this world, he swear he is going to do that. This happened in December 2007. He didn't have money, could not find a job, I gave him free accommodation. Free meals for 3 times a day, every day still refused his idea.

   Some how he managed to get money from father for school fees, but not for living expense or rent, he was totally depending on me. As I am a (occupation omitted), I started teaching him how to look after sick people, and help him to get a job, given reference for him, it was 3 hours per day 3 times per week job, it was enough for him for his petrol and grooming stuffs, still I have to feed him and provide free accommodation.”

   The mother made further allegations and provided further information on her Facebook pages regarding the parties’ personal history, as perceived by her, and in great detail. These Facebook posts ceased on 24 February 2014. She now apologies about this behaviour. But it is troubling and evidence of the mother’s thought processes which have moved from desiring and anticipating a continuation of the relationship to accepting, angrily, the demise of the relationship, in particular because the father has now a new partner. This discovery occurred not long before the parties’ physical and verbal altercation with each other.

3. In respect of the s.60CC(3) of the Act additional considerations, the child is too young to express any views. The child has a good relationship with each of her parents. As observed in the child inclusive conference memorandum to the Court, she is clearly attached and bonded with her mother and there was nothing about her general presentation to suggest any significant concerns about her functioning and/or development. She did, when initially separated from her mother, become highly distressed and clung to her mother with some force. She settled within a reasonable timeframe after her mother departed. During a brief observation session with her mother the child appeared comfortable with her and did not seem apprehensive. When observed with her father she was initially very quiet and hesitant. She nevertheless, responded more positively and engaged more actively with him after a brief period of time. She remained in close proximity to her father and did not appear to be at all apprehensive about being in his presence.

4. The child’s parents had agreed (upon separation) that the child should live with her mother and that it was in her best interests that she see her father regularly. As I say, that agreement did not contemplate supervised time spent with. What the mother seeks this day appears to be based upon the highly contested incident that occurred between the parties on 1 March 2014, although the mother now claims it is a result of the history of the relationship. There is some difficulty for the Court in accepting that.

5. The father pays child support as assessed and there is no abrogation of his responsibility in that regard.  What is proposed by the father is a continuation, really, of what has occurred in the child’s relationship between each of her parents to date.

6. There are various matters that the mother in her affidavit material has expressed concern in relation to, including the accommodation arrangements overnight made for the child by the father. She says these issues do not promote the best interests of the child.  I refer therein to matters which she raises, including alcohol, smoking, and watching pornography. This is in addition to the family violence issues raised by her.

7. Those concerns of the mother, whilst not admitted by the father, and certainly not in the context in which the mother places them, are dealt with in orders made this day, which provide various restraints to ensure the safety and wellbeing of the parties’ daughter.  In addition, the Court will require the father to obtain appropriate overnight accommodation such that he move out of his current home, which he shares with four other male occupants, and move into other accommodation with or without his girlfriend, with a separate bedroom and bed for his daughter.  The orders will envisage that be done and no further overnight time spent with will occur, until such time as those better arrangements are in place.

8. As to the time spent with each Thursday evening, the mother is not happy with a conclusion time of 7.30pm.  Time commences at 5.45pm.  The father does not cease work until 5.00pm and needs that period of time of 45 minutes to get to the (omitted) police station.  The mother is not interested in going to the father’s place of work.  The mother would like the child to be fed by the father.  The father would like to feed the child.  The mother says the child goes to bed at 8.00pm.  The 7.30pm return will allow the mother to place the child in bed at 8.00pm if she wishes and will certainly allow that to occur by 8.30pm. The father needs a reasonable time in which to collect the child, drive the child somewhere, prepare a dinner for the child and return the child to the (omitted) police station.  Any lesser time would not be in the best interests of the child.

9. The Court has ordered a family report to be prepared.  That will be admitted subsequently into evidence.  It will contain more comprehensive observations of the child with her mother and her father.

10. Each of the parties, since their separation and as they present this day, have shown an appropriate attitude to the child and the responsibilities of parenthood in their provision of her care; for her financial support and for her emotional development. The issue is very much one of whether family violence exists, as alleged by the mother and denied by the father. The evidence has not been tested as to the allegations made by the parties. There are few agreed facts.  The Court is satisfied that the child’s safety is protected in the orders which are made this day, and that her relationship with each of her parents is promoted.

1. Finally, the Court has, as already indicated at the commencement of these brief reasons for judgment, a concern about the contrary sworn evidence of the mother in two differing applications.  That is a very serious matter, but it is a matter that the mother can address in the fullness of time by way of any explanation she wishes to proffer.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.

Associate: 

Date:  24 April 2014