Walton and Walton

[2016] FamCA 1025

FAMILY COURT OF AUSTRALIA

WALTON & WALTON [2016] FamCA 1025

FAMILY LAW – PARENTING – Interim – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where there is abuse of the child – Where there is a history of family violence – Decided no order as to parental responsibility – Where there is a need to protect the children from psychological harm – Where the mother has been the primary care giver – Where the mother has a history of alcohol abuse problems – Where the mother is currently abstinent from alcohol – Where the maternal family offers to support the mother – Where the mother is willing to reside with the maternal family – Ordered that the children live with the mother in the residence of the maternal family

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Ms Walton

RESPONDENT: Mr Walton

INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

FILE NUMBER: (P)NCC 2274 of 2016

DATE DELIVERED: 23 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 18 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms McGregor

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: Tony Cox Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

Orders

1. All prior parenting Orders made in the Federal Circuit Court in relation to B, born … 2008 and C, born … 2010 (“the children”) are discharged.

Residence

1. That the child shall live with the mother in the home of the maternal grandmother (and her partner) in Town Z commencing 6.00 pm Friday 2 December 2016.

Time and Communication

1. That the child spend time with the father by agreement between the parties, and failing agreement, either in the home of the paternal grandparents or in their presence, each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday commencing 17 December 2016.

2. In the event that the father moves to live outside the Sydney Metropolitan area then the children shall spend time with the father by arrangement between the parties, and failing agreement, on the first full weekend of each calendar month in the home of the paternal grandparents or in the presence of one or both of them.

3. The father may telephone the children on the telephone number advised by the mother with the father to initiate the call and the mother to permit the children time and privacy:

   (a)       Each week on Wednesday between 5.00 pm and 6.00 pm;

   (b)       On Christmas Day;

   (c)       On the birthday of each child.

4. Changeovers, unless otherwise agreed, shall be at McDonald’s Suburb D, and further, shall be effected by a grandparent on behalf of each parent whenever possible.

School

1. The mother may enrol the children in a school convenient to the home of the maternal grandmother and thereafter is restrained from changing that enrolment without the prior written consent of the father or further Order of the Court.

Therapy for the Children

1. The mother may engage the children in a therapeutic relationship with a suitably qualified psychologist or Child and Family psychiatrist, and further, if she does, must notify the father of the name and contact details of that practitioner.

2. In the event that the mother engages the children in a therapeutic relationship with a psychologist or Child and Family psychiatrist, the mother shall provide to that practitioner:

   (a)       The name and contact details of the father;

   (b)       A copy of these Orders and Reasons for Judgment; and

   (c)A copy of the Child Inclusive Memorandum of Family Consultant dated 16 September 2016.

Restraints

1. The mother is restrained from drinking alcohol at any time.

2. The father is restrained from drinking alcohol at any time when the children are spending time with him and for 12 hours prior to time commencing.

3. Each party is restrained from denigrating the other party and members of his/her extended family and shall use that party’s best efforts to ensure that third parties are similarly restrained.

4. The mother shall as soon as is reasonably practicable install a SMART START “IN-HOM” ALCOHOL MONITORING SYSTEM in her home and if she drives the children, or either of them, she is to undertake a breath test through the system prior to driving the children (or either of them) and to observe a 0.00 alcohol reading before driving with them. The mother shall undertake a breath test though the system at 8.00 pm each evening for the first month after the date of these Orders, and then each second evening for one month, and then each third evening for one month. It is noted that all readings from this device are recorded (and a photograph is taken at the time the sample is given) and the readings are to be downloaded by the service centre upon request by the Independent Children’s Lawyer. The mother will authorise the service centre to provide download access to the Independent Children’s Lawyer.

Specific Issues

1. Each party will notify the other party as soon as possible if either of the children becomes ill and has to see a doctor or other health professional, or is admitted to hospital and each will provide relevant medical practitioners with all consent necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.

2. The parents will keep each other informed of their telephone numbers, residential addresses and email addresses and will notify each other within 24 hours of any change.

3. The mother must follow the directions of her treating medical practitioners or healthcare workers, including psychologists and counsellors, for as long as is deemed necessary in relation to her psychological issues and alcohol consumption issues.

4. The father shall follow the directions of his treating medical practitioners and other healthcare workers, including psychologists and counsellors, for as long as is deemed necessary by the medical practitioners or healthcare workers in relation to his psychological issues and alcohol consumption issues.

5. That the Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment (in due course) to the Department of Family and Community Services.

NOTATION

(A)The subject children have been exposed to family violence, particularly assaults on their mother by their father.

(B)The subject children have been exposed to harm and neglect as a result of each of the parents drinking alcohol to excess, particularly the mother.

(C)The children have suffered disruption to their education by missing school for several weeks and by changes of school.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2275 of 2016

Ms Walton

Applicant

And

Mr Walton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for interim parenting orders in respect to two children; a boy aged almost nine, and a girl aged six.

2. The Applicant is the mother of the children. She is aged 46 and is presently living with her mother and stepfather in the Southern Highlands of New South Wales.

3. The Respondent is the father of the children. He is 49 and is presently living with his parents in their home in a northern suburb of Sydney. The two children are presently members of that household.

4. The two households are approximately 150 kilometres apart, about two hours by car.

5. The matter came before me in a duty list on 18 November 2016. In the circumstances which I will come to shortly, the matter was heard on that day with judgment reserved, despite there apparently being interim orders in place. The homes of the respective grandparents represent places of safety for these two children.

6. By her Amended Application filed on 10 November 2016, the mother seeks a raft of orders of which the following are the most significant: 

   1.That the children live with her in the home of her mother and the maternal grandmother’s partner;

   2.That she have sole parental responsibility for the children;

   3.That the children spend time with the father on each alternate weekend and other special times, supervised by the paternal grandmother or another suitable adult as agreed; and

   4.That the father be restrained from allowing the children to stay overnight at any residence other than that of the paternal grandparents.

7. The mother filed a Notice of Risk alleging a history of exposure of the children to family violence perpetrated by the father on her, alcohol abuse by the father, and emotional and psychological abuse of the children by the father.

8. There is evidence of Apprehended Violence Orders for the protection of the mother over the past eight years. There is evidence of alcohol abuse by the father.

9. By his Amended Response filed 5 October 2016, the father seeks orders, the effect of which is as follows:

   1.Equal shared parental responsibility;

   2.That the children live with him;

   3.That the father be permitted to establish a residence for the children either in E Town in Queensland, or in the alternative, in the home of the paternal grandparents in Suburb F; and

   4.Time with the mother to be determined by the Court.

10. The father filed a Notice of Risk alleging alcohol abuse by the mother, causing emotional and psychological harm to the children and compromising her capacity as a parent.

11. The father acknowledged being charged with assault of the mother and the existence of a current Apprehended Violence Order.

12. Unwisely, just as the mother did not refer to her own abuse of alcohol, the father did not refer to his own abuse of alcohol nor to a unilateral relocation of the children to Queensland, although that was common knowledge.

EVIDENCE

1. The documents relied on in respect of the application were as follows: 

   The Mother

   (a)Amended Initiating Application filed 10/11/2016;

   (b)Notice of Risk filed 30/8/2016;

   (c)Affidavits of the mother filed 30/8/2016, 21/092016, 11/10/2016 and 10/11/2016;

   (d)Affidavits of the maternal grandmother, Ms G filed 22/09/2016 and 10/11/2016;

   The Father

   (e)Amended Response filed 5/10/2016;

   (f)Notice of Risk filed 15/09/2016;

   (g)Affidavits of the father filed 15/09/2016 and 5/10/2016;

   (h)Affidavits of parental grandparents, Mr and Mrs Walton Snr both filed 5 October 2016;

   Reports

   (i)Child Inclusive Conference dated 16 September 2016.

2. The current application of the mother is strongly supported by the Independent Children's Lawyer, who prepared a Minute of Proposed Orders, which became exhibit 1, and also extensive written submissions, which became exhibit 2.

3. There were comprehensive written submissions by the mother, exhibit 3 and further, handed up on behalf of the mother, was a guide in short form acknowledged by the other parties to be accurate to the subpoenaed material relied on in submissions from 27 subpoena packets.

History of Relevant Events

1. The parties began living together in 1999 (and married late in the following year) drinking together, particularly in the evening, the mother usually a bottle of champagne, the father usually six beers or more and a couple of glasses of wine. This level of alcohol consumption was a feature of their relationship.

2. They lived in Sydney until about 2006 then moved to E Town for about three and half years until the father lost his employment. The older child was born in Queensland during that period in 2008.

3. The parties returned to Sydney after the father lost his employment, and the second child was born in 2010. The mother gave up drinking entirely for about two and half years after she learned that she was pregnant with the second child.

4. In 2014, the parties moved to H Town and were living there when they initially separated. The first protection order for the mother was granted in 2008 in Queensland.

5. In 2015, the father was charged and convicted of assault, causing actual bodily harm and intimidation. The father received a s 10 order and a good behaviour bond under the Crimes (Sentencing and Procedure) Act 1999 (NSW) and a provisional Apprehended Domestic Violence Order issued on 17 September 2015.[1]

   [1] Mother’s Affidavit filed 30/08/2016, Annexure C 

6. On 18 February 2016, the father was retrenched from work. In April of this year, 2016, a Final Apprehended Domestic Violence Order for the protection of the mother from the father was granted for 12 months.[2] That Apprehended Domestic Violence Order is still current.

   [2] Mother’s Affidavit filed 30/08/2016, Annexure D

7. The parties continued to live together until, they say, they separated on either 20 or 30 June 2016 but remained living in the same home. There is no real indication of the extent to which the operation of the household changed after this separation.

8. In the late stages of their marriage the mother attests to drinking two bottles of champagne most nights and alleges that the father drank between six to 10 beers and at least two glasses of wine most nights. The irresistible inference is that the children, even if asleep, were unsupervised and at risk in the care of their intoxicated parents.

Physical Separation

1. On 14 August 2016, the mother attempted suicide. She was taken to hospital by the father. The mother alleges she was driven to this act by the harassment and abuse of the father.[3] The father alleges that the mother’s behaviour was reactive to his telling the mother that he was ending the relationship, “I’m taking the kids and I’m leaving”.[4]

   [3] Mother’s Affidavit filed 21/09//2016, pars 47-53

   [4] Father’s Affidavit filed 15/09/2016, pars 25-28

2. On 16 August 2016, the father brought the children to see their mother in hospital. The parties agree that the father asked for the mother’s permission to take the children to live in E Town, Queensland, and the mother definitively said no. Allegedly, after an argument about parental rights the father addressed the children, “Okay, kids, we’re going. You’re never going to see your mother again.”[5]  The father denies saying that to the children.

   [5] Mother’s Affidavit filed 30/08/2016, par 12

3. On 17 August 2016, the mother was discharged from hospital. The next day the mother sought advice from Legal Aid, a letter was issued confirming that the mother did not consent to the move of the children to E Town.

4. On 19 August 2016, the father advised that he would shortly be taking the children to Sydney. That same day the mother returned to Legal Aid, and another letter,[6] issued this time to the father’s solicitors, opposed the removal from the area and proposed Family Dispute Resolution.

   [6] Mother’s Affidavit filed 30/08/2016, Annexure B

5. On 20 August 2016, the father moved to Sydney with the children.

6. On 22 August 2016, the mother terminated the lease on the home in H Town and looked for another property.

7. On 28 August, the father flew with the children to E Town and enrolled them in school there.

8. On 30 August 2016, the mother filed her Initiating Application, Affidavit and Notice of Risk in the Federal Circuit Court. Her interim orders were for recovery of the children. Her Notice of Risk referred accurately to family violence, raised allegations of excessive drinking by the father but, unwisely perhaps, made no reference to the risks associated with her own conduct including heavy drinking, depression and episodic periods away from the children for appropriate rehabilitation.

9. On 1 September 2016, the father commenced full-time employment in E Town, he says, with flexible hours that met the needs of the children. The father’s move at this time, and this will no doubt be an issue explored in final hearing, was probably with a view of allowing the mother to undergo rehabilitation and perhaps was an encouragement for her to return to live in E Town.

10. The father properly conceded that the mother is “a good mother when not under the influence of alcohol” and that she loved the children unconditionally. The father stated in this affidavit, not unreasonably, that her dependence on alcohol was damaging her relationship with her children.[7]  The father made no reference to the fact that his use of alcohol and his violence directed towards the mother was likely also damaging his relationship with the children.

    [7] Father’s Affidavit filed 5/10/2015, pars 43-44

11. The father also stated, consistently with evidence given by the maternal grandmother, that the mother’s alcohol abuse had affected her relationships with her family of origin. That may well be the case. It is likely that the violence in the relationship between the parties also had its own impact on the mother’s relationships with her extended family.

12. The father indicated that he was prepared to fly the mother to E Town four times a year to see the children. This was to significantly underestimate the needs of the children who have, almost certainly, been traumatised by the conduct of both their parents and of the disruptive events of their separation.

13. On 5 September 2016 the matter came before the Federal Circuit Court. By that date, the father had not filed any documents. The father was legally represented by counsel but not present at Court. Orders were made pending further order that the father cause the children to return from E Town to Suburb F where the father remain living with the children until 20 September 2016.

14. An Independent Children’s Lawyer was appointed. A Child Inclusive Conference was ordered. The matter was adjourned to 20 September 2016 for directions in the Wauchope sittings.

15. There were directions for the father to file documents and a notation that the father had indicated he would return on 8 September 2016. The father did return with the children, as ordered, to live with his parents. The children had not attended school for several weeks. They had been cut off from their mother.

16. They have now been enrolled in the local private school in the area of the home of the paternal grandparents where the older child had briefly attended in the past.

    On 15 September 2016, the father filed his documents seeking leave to return to E Town. On the following day, the parents and children were observed in the Child Inclusive Conference. Both parents were assessed to currently have “A poor capacity for child focus and empathy”.[8]  The presentation of the children was concerning to the Family Consultant. She regarded the matter as high risk. Both children reported, “Very low levels of happiness and security and high levels of fear.” [9]

    [8] Child Inclusive Conference Memorandum dated 16/09/2016, page 3

    [9] Child Inclusive Conference Memorandum dated 16/09/2016, page 4

17. The younger child, C, was said to describe intensely missing the mother. The older child, B, was described as being enmeshed with his father’s position and fearful. Both children had difficulty identifying adults they could go to if concerned about their safety.

18. The Family Consultant recommended that there be a Chapter 15 psychiatric assessment of the family and a transfer to the Family Court.

19. On 20 September 2016, the matter came back before the Federal Circuit Court. Interim consent orders were made for two defined periods of time for the children to spend time with the mother. The matter was adjourned for interim hearing with two hours allocated on 11 October 2016.

1. The parties changed their positions. The maternal grandmother deposed her willingness to move to H Town to assist the mother with the care of the children.

2. The father filed an Amended Response, proposing living with his parents in Suburb F as an alternative to a return to E Town. Both his parents then filed their supporting affidavits, expressing their willingness to assist him with the care of the children.

3. On 11 October 2016, the matter came before the Federal Circuit Court again. On that day, there was no interim hearing. I was told from the bar table, without dissent, that the parties had been told there would not be an interim hearing by the Federal Circuit Court and that the matter would be transferred to this Court.

4. The parties, faced with uncertainty about future arrangements, put together what was described on the document as “interim interim consent orders” to cover the transitional period. The matter came before me, urgently, in the Duty List four weeks later. It is for those reasons that I heard the matter which was;

   (a)not a one hour duty matter, but rather a half-day matter, certainly not less than the two hours allocated; and

   (b)because the matter had not had an interim hearing, although three sets of interim orders had been made.

5. On 27 October 2016, the mother moved from H Town to live with her mother and her mother’s partner.

6. The property is a four bedroom home and the children each have a bedroom there and some of their possessions.

THE LAW

Parental Responsibility 

1. Section 61DA of Family Law Act 1975 (Cth) (“the Act”) states that when making a parenting order in relation to children, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.

2. In this case, the father asked the Court to make that order. The mother asked the Court to make an order for sole parental responsibility for her.

3. Neither, in my view, is the appropriate order to make. The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in;

   (a)The abuse of a child and, in this case, there has been abuse. There has been emotional abuse by the father including mockery of the mother, although that is an untested allegation, and neglect, by some extent, by both parents;

   (b)Perpetration of family violence. There is ample evidence of family violence. There are Apprehended Violence Orders and occasions of assault on the mother by the father. There are allegations of denigration of the mother by the father to the children, including encouraging them to sing songs about her tendency to drink to excess and referring, generally, in a derogatory way.

   This evidence comfortably rebuts the presumption.

4. The evidence suggests that each of these parents love their children, but has been unable to give priority to their needs. There are limits to the capacity of each of them which will be explored in a final hearing, if there is one, brought about by alcohol abuse and other matters. It is appropriate, at the interim level, for no order in respect of parental responsibility to be made. That leaves each parent retaining duties, powers, responsibility and authority which by law, parents have in relation to children under 18.

5. In relation to what parenting orders should be made, I turn to s 60CC of the Act.

Primary Considerations

1. The primary consideration is for the children to benefit from a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

2. The Court must give greater weight to the second consideration. There is certainly a need, in this case, to protect the children from psychological harm from being abused, exposed to abuse, neglect and family violence.

3. The children do have a meaningful relationship with both of their parents, with some limitations, which are reflected in the fact of the observations made by the Family Consultant of the children’s fearfulness and uncertainty about which adults can help them.

4. The secondary consideration are the views of the children and I am not in a position to come to any conclusion about that, although C is strongly expressing the extent to which she misses her mother.

The nature of the relationship of the child with each of their parents and other persons

1. They have spent the majority of time in the care of their parents and the mother alleges and the father somewhat supports her allegation that she was the primary carer of the children,[10] with the exception of the period from February to August 2016 when the father was at home through unemployment and the mother was working. It appears likely that there was significant involvement by both parents but that it was the mother who attended to the children’s day to day needs for most of their early life.

   [10] Mother’s Affidavit filed 21/09//2016, pars 63-67

2. The children’s relationship with their grandparents is yet to be explored in a full Family Report.

3. They have not seen a great deal of their maternal grandmother but there is some evidence that they enjoy a good relationship with her. They have seen quite a bit of their paternal grandparents, but in circumstances where they were either sent down to stay with them when their parents’ relationship was such that they should not be exposed to it, or at times when both parents and the children were living with the paternal grandparents and were doing so unhappily. That may explain, although it may not, why the Family Consultant reflected that their relationship with their paternal grandparents did not appear to be especially close.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The period since August of this year to date has been a chaotic one. The children have missed school. They were withdrawn from their school in H Town, stayed in Sydney without attending school, were enrolled in the former school in E Town, have now been re-enrolled in the school near their paternal grandparents’ home, and it is proposed that they be enrolled in a school near the mother’s home. They must have been completely uncertain about when their life would resume some normality.

2. The parents have been strongly involved in a competition with each other about where the children would live and who would take care of them. Each of them has some limits on their capacity to focus on the needs of the children at this time.

3. It will be a matter for final hearing as to whether that was reactive to separation or is a deeper problem.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The mother is proposing that the children live with her in the Southern Highlands, which would be a two hour drive away from where they are presently living and a complete change. They have not lived with their maternal grandmother before.

2. The benefit to them would be that the mother then has full time support, not only in their care, but in her decision to, again, become abstinent from alcohol, which she asserts she has been since August 2016. There are also maternal cousins close by in the area. There is no evidence as to what relationship the children have with them.

3. The children are presently living with their paternal grandparents and they have done so before for periods of time. The father’s real preference, evident by his return to E Town for employment and his alternative position in his Application, is to return to live in Queensland. It is understandable, especially in terms of employment, but it is likely that if he is required to remain living with his parents and the children, that that situation will not be tenable for an extended period of time.

4. A return by the children to E Town with the father would see their relationship with their mother reduced to one of identity contact four times a year which is not in their best interests.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. There is a two hour drive, but responsible adults can transport the children and the changeover place is put forward by the Independent Children’s Lawyer which is common sense in relation to the distance involved.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Both parents have the financial capacity to meet the need for the children to see the other parent. Capacity of each of the parents is a very significant issue and will need to be properly explored by either a Single Expert Child and Family Psychiatrist or a Family Consultant. That issue remains to be determined.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The older child has been seeing a psychologist since 2015 and is generally fearful and uncertain. The evidence suggests that he was failing to learn well and had a flat affect.

2. The younger child embraced school which she started this year with enthusiasm but her first year of kindergarten has been disrupted. She has had difficulties with her eyesight and the mother has been attentive to that issue.

3. There is absolutely no doubt that the children will find a benefit in being returned to school and consistently attending.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family

1. There is a current family violence order.

2. There are allegations by the mother that the father has threatened to kill her. There are also allegations that the mother has drunk to excess at times to cope with actual violence or feared violence. That is a difficult and complex issue as to what extent the mother accepts responsibility for her own actions and to what extent the father is responsible for the mother’s behaviour.

3. I certainly cannot make any findings about that at this time.

Conclusion

1. I have come to the conclusion that given the pattern of the mother caring for the children day to day, her decision to live with her mother in order to obtain support and assistance with the children and also her decision to remain abstinent from alcohol, that the children should move to live with their mother in the home of the maternal grandmother.

2. The order defines the place of residence of the mother as in the home of the maternal grandmother.

3. Provision will be made along the lines of the Independent Children’s Lawyers proposal for alternate weekends with the father in the home of the paternal grandparents.

4. In the event that the father decides to return himself to Queensland the time the father spends with the children will be as agreed between the parties, otherwise one weekend per month in the home of the paternal grandparents.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 23 November 2016.

Associate: 

Date:  29 November 2016