Wilson and Carter
[2008] FMCAfam 349
•9 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILSON & CARTER | [2008] FMCAfam 349 |
| FAMILY LAW – Parenting – unilateral move by respondent interstate with child – long period of absence of father from child’s life – child exposed to violence between parents – the child’s schooling – whether private schooling is feasible – family trust – presumption of equal shared parental responsibility rebutted as not in the child’s best interests immediately – family violence and communication break down between parents – graduated time regime. |
| Family Law Act 1975 (Cth), ss.4(1), 60B(1)(a), 60(1)(b), 60CA, 60CC(2), 60CC(2)(a), 60CC(3)(b), 60CC(4), 61B, 65DAA, 61DA(1) |
| Patsalou and Patsalou (1995) FLC 92-580 JB and BG (1994) FLC 92-515 Blair and Blair [2007] FamCA 253 Kennedy and Kennedy [2007] FamCA 1221 |
| Applicant: | MR WILSON |
| Respondent: | MS CARTER |
| File Number: | PAC6495 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 18 March & 11 April 2008 |
| Date of Last Submission: | 25 March 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 9 May 2008 |
REPRESENTATION
| Applicant: | Mr Wilson |
| Solicitor Advocate for the Respondent: | Mr Jurd |
| Solicitors for the Respondent: | Ms Diamond |
ORDERS
All previous parenting Orders be discharged.
The child R born in 2005 live with the respondent mother.
The child spend time with the applicant father on a gradual basis as follows;
From 9 May 2008
(a)From 10.00am to 4.00pm each Tuesday commencing 13 May 2008.
(b)From 10.00am to 6.00pm each alternate Saturday commencing 17 May 2008.
From 1 August 2008
(c)From 10.00am to 5.00pm each Tuesday commencing 5 August 2008
(d)Each alternate weekend from 10.00am Saturday to 5.00pm Sunday commencing 9 August 2008.
Pursuant to section 13C of the Family Law Act 1975 by 1 August 2008 the applicant must attend assessment for parenting programs specifically related to anger management and communication at a date and time organised by a dispute resolution coordinator at the Federal Magistrates Court.
Provided that the applicant has completed the assigned parenting course the applicant’s time with the child will increase as follows;
From 1 October 2008
(a)Each alternate week from 4.00pm Thursday to 4.00pm Friday commencing 9 October 2008.
(b)Each alternate weekend from 4.00pm Friday to 4.00pm Sunday commencing 3 October 2008.
(c)The child is to be in her mother’s care for the first half of the Christmas Holidays and on Christmas Day.
(d)The child is to spend time with the applicant from Friday
26 December 2008 (Boxing Day) for two weeks thereafter.(e)The applicant may during this two week period return to New Zealand with the child in order to see her paternal grandparents and extended family. The applicant must provide the respondent with copies of return airline tickets to and from New Zealand no less that fourteen days (14) before departure as well as complying with order (14).
(f)The respondent is to make the child’s Passport available to the applicant at least 3 days before departure and undertake all such actions as are necessary to enable the child to travel on the dates specified.
(g)The child is to be returned to the respondent by Friday 9 January 2009 by 4.00pm whereafter the orders set out in Order (5) resume.
(h)On the child’s birthday as follows:
(i)If the birthday falls on a school day, from after school the evening prior to the child’s birthday until the start of school the day of the birthday.
(ii)If the birthday falls on a weekend when the child would not have been spending time with the applicant for four hours from 9 am to 1 pm.
(i)For Father’s Day each year if it falls on a weekend when the child would not have been spending time with the applicant from 9 am to 5 pm.
From the time the child starts primary school;
(a)Each alternate week from the finish of the school day Thursday to the beginning of the school day Friday.
(b)Each alternate weekend from the end of school Friday to the Start of School Monday.
(c)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
To facilitate the children’s living arrangements the respondent shall deliver the child to the [K] Police Station at the commencing of the time and the applicant shall return the child to the [K] Police Station at the conclusion of the time other than when the child is being collected or delivered to school or preschool.
The respondent is to have sole responsibility for making decisions about the long term care, welfare and development of the said child.
Each party has responsibility for making decisions as to the day to day care, welfare and development of the said child while the child is in their care.
The respondent is to inform the applicant of any decisions concerning the long term care, welfare and development of the child.
Neither party shall enrol the child in a continuing activity that requires the child to attend that activity during periods when the child is in the other party’s care unless both parents agree that the child should participate in it.
Each of the parties shall be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
In the event the child is too ill to spend time with the applicant, the child shall remain in the respondent’s care and they shall provide the applicant as soon as practicable with a medical certificate should they require it.
If either party intends to take the child on holidays or take the child away from their normal place of residence for a period of in excess of 24 hours that party shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the child can be contacted.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
The respondent shall make the child available for contact with the paternal grandparents for a minimum of four hours in the event that the paternal grandparents are visiting Australia during a period when the applicant does not have residence.
The applicant is restrained from;
(a)Consuming alcohol for twelve (12) hours prior to and during any period while the said child is in his care.
(b)Smoking marijuana during any period while the said child is in his care.
The applicant be and is hereby restrained by himself, his servants or agents from telephoning, assaulting, harassing or intimidating the respondent or by entering into or upon, remaining upon or loitering near the premises situate at and known as Property [X] [K] in the State of New South Wales or any other premises at which the said respondent may be residing at or where she may be employed.
The child is to attend the [B] School when she is ready to start Kindergarten.
The applicant is solely responsible for the payment of child’s school fees at the [B] School.
The applicant shall pay the school fees 12 months in advance and provide the respondent with receipt of payment
The respondent is to pay for school uniforms, text books, stationary and any other material required for the child’s schooling.
Pursuant to section 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 Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wilson & Carter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
(P)PAC6495 of 2007
| MR WILSON |
Applicant
And
| MS CARTER |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings involve an application made by Mr Wilson (the applicant father) in relation to the day to day care of his daughter R (the child). Ms Carter, the child’s mother, is the respondent in these proceedings.
The applicant appeared before the Court self-represented. The respondent was represented by Mr Jurd, agent for the respondent’s solicitor Ms Diamond.
The application in this case was filed by the father on 28 November 2007 seeking short notice for hearing. Short notice was refused and an order was made that the parties attend mediation to be conducted by a family dispute resolution practitioner pursuant to section 60I of the Family Law Act 1975.
In his application the father sought orders that the parents have equal shared parental responsibility of the child and that from the start of 2009 the child attend [B] School for her pre-school, primary and secondary education.
The respondent mother sought orders that the child live with her and spend time with the applicant on a graduated basis. The respondent also sought orders that the applicant attend a parenting and anger management course with a recognised community or government agency and that the applicant produce documentation to the respondent showing he had completed the designated course. Following this, the applicant’s time with the child should be increased. The respondent also sought orders that the child commence her schooling when ready to start kindergarten at the [B] School provided the applicant shows the respondent he can afford to send the child to that school. The respondent also wanted the applicant to be restrained from removing the said child out of the country without written permission from the respondent.
The matter came before the Court on 11 February 2008 and was adjourned for an interim hearing on the following day. On 12 February 2008 Federal Magistrate Donald ordered that the child live with her respondent and that the applicant father spend time with the child as follows;
a)Each Tuesday from 9 am to 12 noon
b)Each Friday from 9 am to 12 noon
c)Each Sunday from 10 am to 1 pm.
There were various other orders made concerning the collection, communication and responsibility of the parents on an interim basis. The applicant was also restrained from consuming alcohol or non-prescription drugs for a period of 12 hours prior to spending time with the child.
The applicant now seeks the following parenting orders;
a)That the respondent and applicant have equal shared parental responsibility.
b)Both parents attend counselling as directed by the Court to deal with issues relating to the care of R.
c)That the child spend two nights per week with each parent and the exchange of the child happens through respective school drop off’s.
d)That the child spends time with the applicant each alternate weekend from Friday 5.00pm or the end of the child’s school day to the following Monday at 8.00am or the start of the child’s school day.
Relevant background
The applicant in these proceedings was self-represented. He was born in New Zealand in 1979. He is currently 28 years old. The respondent was born in Australia in 1980. She is currently 27 years old. The applicant works in the IT industry. The respondent is studying and is a stay at home mother.
The child, R, was born in 2005 in New Zealand. She is currently
3 years old and lives with the respondent mother.
The applicant and respondent met in Sydney, around April 2003. In June 2003 the applicant moved back to work in his parent’s business in New Zealand. The respondent moved to New Zealand around August that year to pursue a relationship with the applicant.
In July 2004 the respondent was informed she was pregnant. Around this time the couple were renting a property in [H], New Zealand. The couple ultimately purchased the property in [H] using money from the applicant’s family trust fund. In October 2004 the respondent returned to Sydney for three weeks to spend time with her family. When she returned to New Zealand the couple were engaged.
Around four months after the birth of the child, around August 2005, the couple moved to Perth. The applicant set up employment working as an IT contractor and moved to Perth soon after. The respondent and child stayed in New Zealand to pack up the home in [H] and put it on the market before moving to Perth around three weeks later.
Shortly after the couple arrived in Perth the applicant purchased a property in Western Australia.
Not long after moving to Perth and following an altercation between the couple, the respondent unilaterally moved back to Sydney with the child. After extensive communication between the couple over the telephone, the applicant eventually flew to Sydney in January 2006 to spend time with the child and in an attempt to rebuild a relationship with the respondent.
In February 2006 the respondent decided that she would return to Perth with the child and give the relationship another go. The reconciliation was short lived and the respondent and the child returned to Sydney in late March 2006.
After the respondent’s return to Sydney, the applicant lodged an application for the recovery of the child with the Family Court of Western Australia. This was later withdrawn. In April 2006 the respondent filed at the Local Court of Sutherland, New South Wales seeking sole responsibility of the child. This was also withdrawn.
It was not until early October 2006 that the applicant flew to Sydney to see the child. During this visit, an altercation arose between the applicant and the respondent concerning the child. Police were called to the hotel where the applicant was staying. There was substantial evidence given in the proceedings and I will refer to this altercation later in my judgment.
In April 2007 the applicant decided to move to Sydney to be closer to his child. The respondent and applicant agreed to attend mediation on his arrival. The applicant put his home in Perth on the market.
Once in Sydney the applicant moved into a place in [G]. At or around the same time the respondent moved to a new address with the child in [K]. The respondent agreed to meeting the applicant with the child at a local park in [K] each week-end for a couple of hours.
The applicant has subsequently moved to [L] and now lives close to the child and the respondent.
The respondent gave evidence that she wishes R to have a continuing relationship with her father. She was however concerned about the applicant’s capacity to care for R and also raised concerns about his alcohol and drug use and inability to control his temper. During the hearing it was apparent that the applicant was under considerable stress. This may be partly explained by the fact that as a result of the respondent’s moves to different locations and her failure to advise the applicant of any new address, he had been deprived of contact with R for a lengthy period of time. He had also had the upheaval of selling his properties and winding up his business in Perth and having to start again in [B].
It was however apparent that the relationship between the respondent and applicant had broken down completely. There appeared to be no ability to communicate effectively. The respondent expressed concerns for her safety in the event that she was forced to be in any physical proximity to the applicant. During the trial there was considerable evidence of the violence which has occurred.
The evidence
At the hearing the applicant relied upon the following material:
a)His affidavits filed on 28 November 2007 and 12 March 2008
b)The affidavit of Mr P filed on 7 February 2008
c)The affidavits of Mrs W filed 7 February 2008, 12 March 2008
d)The affidavit of Mrs S filed12 March 2008
The respondent relied upon the following material:
a)Her affidavits filed 22 January 2008 and 5 March 2008
b)The affidavit of Mr P filed 5 March 2008
Legal principles
The legal principles which govern this case are set out in Part VII of the Family Law Act 1975 (Cth) (the Act). Most importantly, s.60CA provides that the best interests of the child are the paramount consideration.
In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters set out in s.60CC(3).
Clearly, the primary considerations are of greater importance than the additional considerations, in determining the best interests of the child. However, I must consider all the factors before coming to a conclusion as to the best interests of the child. Most relevantly, in this case, I must also ensure that any orders made are consistent with any family violence order and do not expose any person to an unacceptable risk of family violence, to the extent that it is possible to do so consistent with ensuring that the child’s best interests remains the overriding consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence. These are very important considerations in this case and I give them much weight because they are primary considerations and reflect the objects of the Act as set out in s.60B.
The objects are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Mr Wilson
The applicant father’s case is essentially that the child, R, was unilaterally moved by the respondent interstate and that he has taken all necessary steps to have a relationship with his daughter to no avail. He says that his only recourse in seeking time with his daughter was through the Courts as the respondent made it very difficult for him to develop any kind of relationship with the child.
The applicant claims that shortly after the child was born he spent a couple of hours with the child before and after work each day and that he also spent a lot of time with the child on weekends. After the family moved to Perth around August 2005 the applicant states that he continued to routinely care for the child before and after work.
The applicant says that the respondent and himself would argue about many things including the respondent’s wish to return to Sydney. The applicant expressed frustration that he had just ‘sold up’ in New Zealand to move to Perth and the respondent wanted to move again.
The applicant recalls an incident between the couple on or around October 2005 where the applicant claims the respondent attempted to run him over in the driveway of their house. The following day the police attended the house and the applicant claims the couple agreed to resolve their differences through counselling. The applicant claims that a few days following this incident the respondent flew to Sydney with the child without his knowledge and that he has barely been able to see his daughter since.
In January 2006 the applicant flew to Sydney to discuss parenting plans with the respondent. He says that during this time the respondent had discussed with him the possibility of reconciling their relationship.
In February 2006, the respondent and child returned to Perth to live with the applicant. During this time the couple attended relationship counselling.
The applicant says that he spent a lot of time with the child during her return to Perth and would swim with her each evening and many times over the weekend. The respondent claimed that she needed to return to Sydney after being in Perth for approximately one month to ‘pack up her property’. She said that she would call when she arrived in Sydney to let the applicant know when she would return.
The applicant called the respondent several times a day following her return to Sydney but could not get through to her. It became clear that the respondent had again returned to Sydney with the child and had no plans to return to Perth.
In late May 2006 the applicant received a telephone call from the respondent to discuss reconciliation. Around this time, and marked as ‘Annexure 3’ to his affidavit filed 28 November 2007, the applicant received a poster from the respondent and his daughter stating ‘We miss you Daddy’.
In October 2006 the applicant flew to Sydney to spend time with his daughter. The applicant says that his daughter recognised him, smiled and was not distressed to be in his arms. He spent roughly three hours with his daughter on this occasion.
The next day, on 7 October 2006, the applicant, respondent and the child had lunch together in Sydney. Following the lunch they went to the applicant’s hotel room. The applicant says that the respondent wanted to go shortly after arriving and that he wanted to spend more time with the child. The respondent said that the child needed to go to sleep. After the respondent had packed her belongings to leave a fight broke out between the couple. The child became distressed. The respondent then started yelling that the applicant had abducted them both and proceeded to attack the applicant by scratching, hitting and biting him The hotel management were involved and the police arrived soon after to take statements from the parties.
That night the applicant returned to Perth. In cross examination he says he returned to Perth depressed and as a result made no attempt to contact the respondent as he realised there was absolutely no chance of reconciliation between them. The applicant’s affidavit filed
28 November 2007says that he did not hear from the respondent, nor could he contact her, until February 2007 when he used another friend’s phone. The applicant says that he wrote a letter to the respondent on 9 March 2007 indicating that he would commence legal action if they could not resolve their differences.
Soon after this, on or about the child’s birthday, the applicant says an agreement was reached between the respondent and himself that if the applicant moved to Sydney the respondent would allow the applicant to spend considerable time with the child.
The applicant moved to Sydney on 9 April 2007. He moved to a place in [G] near [N] as he thought this was a nice place for the child to spend time. He says he was also working in [N] at the time. The house was however, two hours from where the child was living.
The applicant says he moved to [P] on or around October 2007 in order to be closer to the respondent in [K] and that he wanted arrangements concerning the child put in place before he moved to western Sydney. The applicant says that agreement between him and the respondent concerning the living arrangements of the child was reached but the respondent continued to go back on her word.
An undated document was tendered into evidence and marked exhibit (A5) titled ‘Agreement between Mr Wilson and Ms Carter in regard to the contact and living arrangement for R. The document was signed by the respondent mother, though the applicant father had not signed the document.
The applicant says he arranged to see the child on a number of occasions after arriving in Sydney and that the respondent failed to keep her word. The respondent eventually allowed the applicant to see the child at a park in [K] where he spent an hour and a half with the child and the respondent.
The respondent also allowed the applicant to spend time with the child on a few occasions when the applicant’s brother was visiting from New Zealand. This was also supervised by the respondent. The applicant expressed concern about the restrictions placed on his time with child.
The applicant clearly became aggrieved by this situation. In cross-examination he concurred that he arrived at the respondent’s house on 20 August 2007 around 7:00pm and was told to leave by the respondent. After banging on the door and the window the applicant yelled words to the effect ‘R you Mum is a stupid bitch, she is trying to keep me away from you…You have pushed me to this’.
The respondent called the police and on 26 September 2007 an Apprehended Violence Order (AVO) was ordered by the [K] Local Court.
The application in this case was filed a few months later by the father.
Since orders were made by the Court on 12 February 2008 the applicant has spent time with the child for three hours each Tuesday, Friday and Saturday. The applicant considered this an opportunity to rebuild a relationship with his daughter.
The applicant states that after orders were made to this effect he began looking for properties to live closer to the child’s school and the respondent’s residence. He signed a lease on Tuesday 19 February 2008 for a house in [L], New South Wales.
The applicant says that on the first visit 15 February 2008 the child was reserved and close to tears soon after leaving her mother and maternal grandparents.
He thought it was a good idea for the child to spend the day with his next door neighbours from [G] as they have two daughters of their own and were looking after the applicant’s cat with whom the child was familiar. The applicant says that the child immediately relaxed in their company and played on the trampoline, in the backyard and also across the road in the park. The applicant says the child fell asleep in the car on the way home.
On the second visit 17 February 2008 the child was again reluctant to go with the applicant, though relaxed into the visit. This time the child went to the next door neighbour’s house again before the applicant took the child to [P] to go shopping. The applicant purchased the child two sets of clothes, a towel, some swimmers a communication book and a card that had ‘R’ on the cover. The applicant wrote on the inside that he loved her and that things would only get better.
The applicant says that on the third visit the child was immediately comfortable with him. The applicant met his Auntie, Mrs S, and friend at the [X] Leisure Centre and took the child swimming and enrolled her in the ‘Learn to Swim’ program in the ‘Penguin’ class. The applicant says the child had fun swimming.
The applicant says the child has become comfortable at his home in [L] and he has told the child she can move into whatever room she wants. He says that he has taught the child how to help around the home, gone swimming, cooked muffins and on each Tuesday takes the child to swimming lessons.
The move to [L] has considerably reduced the distance the child has to travel between parents. The applicant realises that he will need to travel up to two hours to the city for any work commitments due to his move to [L] but says that his daughter is his priority.
Smaller issues concerning the child’s toilet training, a rash from wearing gumboots that were too small for her and the child becoming sunburnt whilst in the applicants care were all raised in evidence by both parties.
The applicant did express concern over the respondent making it difficult for him to communicate directly with her. He says that communicating through third parties and via a communication book makes it very difficult. He feels that both parents have started to move forward in their capacity to co-parent, though believes communication lines between the parties can be improved.
The applicants proposed form of communication is quick telephone calls to each other or letters in the post addressed to one another.
Mrs S
Mrs S is the aunty of the applicant father in these proceedings. Mrs S is a mother and grandmother and is a qualified teacher and has taught at TAFE for approximately 10 years.
Mrs S accompanied the applicant to collect the child on 17 February 2008 and spent the day with them both.
She observed the child was a little reluctant at first to leave the maternal grandparents at the collection point though she noticed the child became more comfortable soon after.
Mrs S went with the applicant and the child to the applicant’s next door neighbour’s house and to [X] Shopping Centre. While shopping the child held Mrs S’s hand.
The following Tuesday Mrs S again accompanied the applicant and the child during their time together. During the visit the applicant took the child to the [X] Aquatic Centre. According to Mrs S the child appeared absolutely delighted. The child would often asked the applicant to pick her up and was relaxed in their company.
Mrs S says that in her observations the applicant has been very attentive to the child and that the child has become more comfortable as times progressed in her father’s company.
Mrs S further noted in cross examination that she returns to New Zealand for family gathering about once a year if not more. There is not one particular time of year that the family meet though she says the family is very close and that her husband feels a special bond with his family there.
Mrs W
Mrs W is the paternal grandmother of the child in these proceedings. She lives in [W], New Zealand.
Mrs W said that she could tell the relationship between the applicant and respondent was not happy though she was never privy to any violence between them. Nor did she suspect violence. She recalled a number of conversations that she had with the respondent mother when the family moved to Perth. When asked in cross examination if she recalled a particular conversation where it is alleged she asked the respondent mother ‘Are you ok, Is [Mr Wilson] hitting you? I am concerned about the way he is speaking to you’ Mrs W simply said she cannot remember.
Counsel for the respondent then drew Mrs W attention to a letter she sent to the respondent on 26 July 2006. The letter was annexed to the respondents affidavit filed 5 March 2008. The letter reads ‘we are concerned that [Mr Wilson] has treated you in the manner you have expressed. It hurts us greatly.’
Mrs W gave evidence in her affidavit 7 February 2008 that she had experienced difficulty in seeing her granddaughter during a visit to Sydney in December 2007. The respondent stated that Mrs W could visit on the condition it was at the respondent’s house and that the applicant was not there. She indicated that there had been hostility between the parties recently during visits at [K] park.
Mrs W says that the applicant was very supportive of her seeing the child and drove her to the respondent’s house although he was not able to see the child himself. She said that the visit went well although the child did not know who she was. They spent time together and Mrs W gave the child her Christmas gifts from New Zealand.
Mrs W said the applicant was visibly upset when she got back in the car as he was not able to see his daughter on this occasion.
Mr P
Mr P is a friend of the applicant in these proceedings and is a IT systems analyst. Mr P started a new business venture with the applicant in IT support.
Mr P’s evidence largely related to the incident that took place between the applicant and the respondent in October 2006 when a fight broke out between them in the applicant’s hotel room in Sydney. I found
Mr P’s evidence of limited value.
Mr P says that the applicant phoned him to pick him up from the hotel and that the applicant appeared quite distressed. The first thing he noticed was the redness of the applicant’s ears that appeared quite bruised. He also says that the applicant then showed him his forearms which had deep scratches. The applicant told Mr P that the respondent had caused the injuries. Attached to Mr P’s affidavit filed 7 February 2008 were photo’s that the applicant had taken of himself in the hotel room after the incident took place.
Ms Carter
The respondent’s case is essentially centred around the applicant and the time he spends with the child. The respondent proposes that the applicant needs to build a meaningful relationship with the child before having significant unsupervised time with her. The respondent proposes a graduated programme be set down to ensure the applicant gets to know the child and the child gets to know her father without any stress to the child.
The respondent says that from the first day she met the applicant he has smoked marijuana every day. He started drinking excessively after the respondent fell pregnant. The levels of smoking and drinking increased throughout the pregnancy to the point the respondent began to fear for her safety.
The respondent says there have been a number of instances of verbal abuse in the relationship and that this culminated after time into physical violence. The respondent recounts in her affidavit filed
22 January 2008instances of the applicant choking her, kicking her in the back and physically restraining her while pregnant.
The respondent says that when she gave up work during the second half of her pregnancy the abuse and violence became worse as the applicant became intolerant of her ‘laziness’ stating that she was useless.
The applicant would become particularly angry when the respondent spent money stating on one occasion ‘It’s my money, I worked for it, we don’t need that shit you are wasting my money’
Around March 2005 when the baby was born the respondent’s parents visited the couple in New Zealand. Words were exchanged between the respondent’s father, Mr C and the applicant, after the applicant refused to let the child go on a walk with the family.
The respondent thought about going back to Australia with her parents but thought that the relationship could still be saved.
In around July 2005 the applicant went to Australia to a friends wedding and when he got back to New Zealand told the respondent that they were moving to Perth. The respondent thought that perhaps things would change.
The respondent says that after a few weeks in Perth she walked into the couple’s bedroom and the applicant was on the phone to his mother, Mrs W, in New Zealand. The applicant told the respondent to ‘get the fuck out’. A few minutes later the applicant called the respondent in and gave her the phone. Mrs W was on the other line and said ‘Are you ok, is Mr Wilson hitting you? I am concerned about the way he is speaking to you’
The respondent says the applicant’s drinking and smoking got progressively worse. The respondent says that she would regularly pick the applicant up from parties and that the applicant would often tell her to leave the child at home to do so. The respondent recalls on one occasion leaving the home around 11pm to pick the applicant up and being told ‘Why the fuck are you here, go home and I will call you when I am ready’. The respondent went to say hello to somebody at the party and the applicant came over to hold the child, the respondent refused to allow him to do so, he walked away and fell over drunk.
On another night the respondent recalls having to pick the applicant up around 2am in the morning. The respondent had to take the child in the car once again. The respondent said that she could not take the applicant’s behaviour any more.
When they got back to the house the applicant punched the respondent in the leg yelling words to the effect ‘just fuck off then, you’re a stupid fucking bitch.’ The applicant then got out of the car to open the child’s door and the respondent tried to back the car out of the drive.
The respondent denies the applicant’s allegation that she tried to run him over. She says the applicant got back in the car, got her in a headlock and started to choke her. He put his other hand on her face and dug his fingertips into her cheeks. He then took the child out of the car and took her into the bedroom and wouldn’t let the respondent in. Not long after the applicant rushed out of the room and proceeded to vomit in the bathroom. The respondent put the child to sleep.
The respondent slept in the child’s bedroom and the applicant came in the next morning and kicked the respondent saying ‘look at your lazy fucking mother R’. The applicant took the child and refused to give her back to the respondent, locking himself and the child in the bedroom. The respondent called her sister in Sydney and said ‘I don’t know what to do, I need help, [Mr Wilson] has gone crazy’. The respondent’s family in Sydney called the Police in Western Australia. When the police arrived the applicant came out of the bedroom and started crying. The respondent says the police were concerned about applicant’s mental state.
A few days later the respondent packed her own and the child’s bag. The applicant took the respondent and the child to the airport and the respondent told him that she was just going for a break. She says that she told the applicant this so she and the daughter could get away safely.
From the time the respondent arrived in Sydney she claims the applicant called 20-30 times a day.
The respondent contacted the child support agency and says the applicant refused to pay for several months.
The respondent claims the applicant has always been allowed to see the child as long as the child is safe. When the applicant flew to Sydney in January 2006 the respondent picked him up from the airport. After the child went to bed the applicant again became abusive, yelling ‘how dare you leave, you have ruined my fucking life, how dare you do this to me – you fucking apologise for what you have done to me’.
In February 2006 the respondent went back to Perth so the applicant could see the child and to see if he had changed. The respondent and child stayed for about four weeks. In that time the applicant became angry and controlling. One night the respondent recalls waking to see the applicant standing over her and hitting her with a pillow yelling ‘you only want my fucking money’. The respondent says the applicant was drunk and stoned. He chased the respondent around the room until she promised to call the child support agency.
The next day the applicant came home and smoked a bong in the kitchen where the child was sitting in her highchair. He asked the respondent whether she had called the child support agency and started waving a letter in her face. He began hitting the respondent in the face with the letter and then proceeded to grab the respondent’s wrists and drag her around the room. The child was privy to these events.
When the respondent expressed that she wanted to return to Sydney because she was scared she says the applicant reacted angrily and started punching and kicking the linen cupboard door. Annexed to her affidavit is a picture of the linen cupboard door with a hole in the bottom right hand side.
The respondent says that a few days before the child’s birthday she wanted to go and buy the child a present. Out of the blue the applicant started yelling at the respondent saying words to the effect ‘what the fuck do you think you are doing, you are not going to spend money without me’. He then lunged at the respondent with his fist raised and the child started crying.
Soon after the respondent called her sister who booked tickets for the respondent and the child to return to Sydney. The respondent says she told the applicant that she was just going to pack up her unit and come back. The respondent says she did this because she was concerned for her and the child’s safety. This was around March 2007.
The applicant came to Sydney in October 2006. The respondent agreed for the applicant to see the child. The respondent’s recollection of the events that transpired in the hotel room are different to those provided by the applicant. The respondent mother says that the child hadn’t slept all day and needed to go home to sleep. She put the child in the pram and as she moved towards the door the applicant jumped in front of her and took the child out of the pram. After about ten minutes he gave the child back and the respondent again tried to leave. The applicant then pushed the respondent with the child in her arms.
The respondent started screaming for help hoping someone would hear her. The applicant put his hand over the respondent’s mouth to stop her screaming and in retaliation the respondent bit him and ran for the door. The applicant caught the respondent and took the child from her arms. The respondent continued to the door and went to find someone. She asked the reception desk to call the police. The hotel manager went to the room and spoke to the applicant and soon after the police arrived.
The applicant went back to Perth that night and continued to call the respondent. The respondent changed her telephone number because she was scared of what the respondent might do. The applicant eventually found out the respondents new telephone number and started calling and making threats that he would take the child. The respondent went to the police station and made a statement. This statement was annexed to the respondent affidavit and marked ‘B’.
When the respondent found out the applicant was moving to Sydney she arranged for them to attend mediation. The applicant moved in April 2007 and began incessantly calling the respondent again. The respondent wanted to attend mediation before the applicant could see the child. The first mediation session was on 8 May 2007. According to the respondent, the parties attended four mediation sessions.
They agreed to meet in a park in [K] and the first few meetings went well. The respondent says that by the third meeting the applicant became aggressive saying ‘ Fucking hell what are you doing in your life, you have moved to this shit hole and you’re exposing R to lowlifes the place is full of single mothers and aborigines.’ The respondent became scared and left. She cancelled the following weeks meeting with the applicant.
The applicant’s brother came from New Zealand and the respondent agreed to meet with the applicant and his brother. After leaving the RSL in [K] they went to the park where the applicant became aggressive again, putting his face to the respondent and saying ‘You fucking bitch, what gives you the right to stop me seeing R’.
The respondent was scared and cancelled all future mediation sessions with the applicant. The respondent says the mediation centre sent certificates to both parties notifying them of this.
On 20 August 2007 the applicant called the respondents phone about ten times. She told him to get a lawyer. The applicant came to respondent’s house at around 7pm that day. He began rattling the front door knob, banging on the door and then the window and yelled words to the effect ‘R you Mum is a stupid bitch, she is trying to keep me away from you’ and yelling to the respondent ‘why did you cancel mediation, it was because I was right wasn’t I, you probably do have guys coming in and our of here constantly’. The respondent called the police and got an AVO that same night. The applicant tried to call the respondent while the police were waiting for the respondent to pack her bags and be escorted to her parent’s house. A copy of the AVO was annexed to the respondent’s affidavit affirmed 15 January 2008 and marked ‘C’.
The respondent says that she tried to introduce the applicant back into the child’s life even though he continued to act in a violent and abusive manner. The respondent says that she is not satisfied the child would be safe with the applicant other than through a graduated program of increased contact with applicant demonstrating the capacity to control his aggression and alcohol and drug usage.
The respondent’s main concern is to ensure that the child does not become upset or hurt by what she sees as the applicant’s ongoing anger towards the respondent. The respondent is worried that the applicant does not possess the parenting skills required to look after a 3 year old child or control his anger.
The respondent says that she has had trouble communicating with the respondent through the communication book.
The respondent was essentially concerned to minimise the contact between herself and the applicant which is when violence is most likely to occur. Further, she sought a gradual increase in contact and appropriate assistance through parenting courses and anger management as to ensure the applicant was able to parent the child appropriately. There is no doubt that the respondent is devoted to the child’s welfare and has also been the constant figure in her life.
I accept the respondent’s evidence as to the violent incidents between her and the applicant. I am however concerned that by concealing her wherabouts and engaging in subterfuge she exacerbated the applicant’s anxiety and prevented him seeing the child on any regular basis for most of the child’s life.
Generally, I found Ms Carter to be credible and I accept her evidence.
Mr C
Mr C is the respondent’s father and has had an ongoing role with the child. In particular, Mr C and his wife look after the child occasionally although never for extended periods. He has made an effort to assist his daughter by accompanying her when taking the child to changeover points.
Mr C says that he recalls visiting the applicant and respondent in New Zealand in August 2004 and says he was surprised at the way the applicant spoke to the respondent. He said the applicant was standing over her and yelling in her face. He said he wanted to say something but decided to leave it alone.
Mr C and his wife went to New Zealand for the child’s birth in March 2005. He says that in the hospital the couple were arguing because the applicant didn’t want the respondent staying in the hospital for an extra night. The respondent relented and went home where she struggled to breast feed the baby. Mr C says the respondent came to him crying saying ‘I have asked [Mr Wilson] to get some formula but he won’t. He has gone to the chemist to get himself some Panadol.’ Mr C asked the applicant why he had not got the formula when he returned and the applicant replied ‘she doesn’t need it’.
The family went to the shopping mall the next morning and Mr C again notice the applicant yelling at the respondent. Mr C says that he went up to the applicant the following morning as he was worried that he might become physical with the respondent and said to him ‘I can forgive most thing but I wont forgive you if you lay a hand on [Ms Carter]’.
The next day the applicant’s parents came over and picked Mr C and his wife up to go for a drive. On the drive the applicant’s mother,
Mrs W, said to Mr C, ‘I am worried about the way that [Mr Wilson] treats [Ms Carter], have you noticed the way he treats her and speaks to her?’
Shortly before Mr C and his wife left New Zealand and after the applicant refused to let the child go for a walk with Mr C, his wife and the respondent, Mr C decided to speak to the applicant. He said words to the effect ‘why do you talk down to [Ms Carter], you don’t treat her with respect. I see you taking any opportunity to put her down’. Mr C said he was very concerned for the respondent and the child when he left.
Mr C gave evidence that during change over Mr Wilson was quite aggressive and in Mr C’s opinion inappropriate for someone who had the best interests of the child at heart. Mr C referred to a number of instances where the respondent had attempted to assist Mr Wilson at changeover by providing him items like chocolate or a bottle which would make the child be more comfortable, only to have Mr Wilson either reject the article or simply throw it into the car. .
I found Mr C to be an entirely credible witness and I accept his evidence as to the aggressive behaviour of the applicant to the respondent at changeover and the incapacity of the applicant to put aside his feelings towards the respondent in order to make the child feel as comfortable as possible. His evidence corroborates that of the mother.
The child’s school
There is agreement between the applicant and the respondent in respect of the child attending the [B] School, though the respondent expressed reservation about the applicant’s capacity to pay for the child’s private school tuition.
Solicitors for the respondent mother served the applicant father with a notice to produce on or around 8 March 2008 requiring the applicant to produce at the hearing of the proceedings a number of financial documents. These documents were to provide evidence that the applicant has capacity to pay for his child’s schooling. The notice to produce was tendered into evidence and marked as exhibit (A4).
On the first day of hearing the applicant had not produced this documentation. He claimed that he did not understand the request. The applicant claimed that his finances were in a state of flux and that it would take three to four weeks to compile the required documentation. Orders were made on 18 March 2008 that;
a)The application be adjourned to 10.00am 10 April 2008
b)The previous orders of 12 February 2008 remain ongoing until the next Court date.
c)The applicant to produce documents under notice to produce served by the respondent by 10 April 2008.
When the matter came back before me on 11 April 2008 the applicant produced a Bank West accounts list comprising three bank account balances. This document was tendered into evidence and marked exhibit (A2). This document shows money available in the applicants business account in the amount of $48,975.98. His personal account balance was an amount of $9,148.25 with a negative credit card balance in the amount of $-3,050.39. His credit card limit was at $15,000.00.
The applicant also produced a letter from [P] Accountants confirming that they have been engaged by the applicant to prepare the annual financial statements for [X] (the applicant’s company) and personal tax returns for the applicant. This document was tendered into evidence and marked exhibit (A3).
I do not doubt on the evidence put before me that the applicant’s financial situation at present is somewhat uncertain. Although the sale of his two properties in Western Australia resulted in capital gains of about $105,000.00 the applicant is embarking on starting his own business in New South Wales. Success is not guaranteed and it is likely to take some time before the business generates any significant return.
In the event that his business is not successful, the applicant did state that he has a fall back as an IT contractor to earn income. The applicant provided evidence that since arriving in Sydney he has worked in two contract roles.. He stated that he cannot recall exactly what he earned in these roles, but surmised that it was $1,000.00 per week some weeks and up to $2,000.00 other weeks.
It is of concern that the applicant failed to comply with the Notice to Produce and that he is in arrears in the payment of his child support. A notice of decision by the Child Support Agency was tendered into evidence by Counsel for the respondent and marked exhibit (A6). The document states that the case was registered with the Child Support Agency (CSA) on 21 November 2005 and that the applicant owes child support in arrears of $3,861.44.
The applicant gave evidence that in the event he can not provide for the school fees himself that the family trust will pay for the child’s tuition is also problematic. The applicant produced a letter from his parents
Mr and Mrs W stating that as trustees of the Wilson family trust they would give approval to meet any educational expenses of the child if the applicant was unable to pay the fees. This letter was tendered into evidence and marked exhibit (A1).
Mrs W is a trustee of the [Wilson] Family Trust and in cross examination she stated that not all trustees were aware of the letter that was tendered into evidence and marked exhibit (A1). She stated that the trust does have money to provide for her granddaughter’s education and that the trust has benefited her own children while they were studying. There was no evidence tendered to indicate how much money was in the family trust at the moment.
The applicant sought orders that the child attend the [B] School. His reasons for doing so include that the child would be able to attend the same school for the whole of her education, the standard of education provided by the school, the opportunity for the child to participate in extra-curricular activities and the expressed Christian values of the school. The applicant also referred to his own educational experience at a private school in New Zealand.
For her part the respondent had no objection to the child attending the [B] School although she made it clear that she was happy with the current arrangements whereby the child attended pre-school at North [K]. Her reasons included, closer proximity to her home, the respondent’s established network with parents and her concern that her personal circumstances may be very different to those of other parents sending their children to the [B] School. The respondent believes the child should not start at [B] School until she starts Kindergarten no sooner than 2010.
The respondent also expressed her concern that if the applicant or his family trust failed to pay the school fees she would have to move the child with consequent disruption. As a result, the respondent sought orders that the applicant pay the school fees one year in advance so as to negate the possibility that R would need to be moved part way through any school year. I find these concerns on part of the respondent to be sincere and legitimate.
In all the circumstances, I am of the opinion that it is in the child’s best interest for her to attend the [B] School from the commencement of kindergarten. It appears unduly disruptive to move her immediately and given that all of her class mates will be progressing from pre-school to kindergarten and that some of her peers may attend the [B] School, this would be the best time to move her. It also gives the respondent time to further her studies without additional trips to school and the applicant time to develop his business. Further, the child does not have to adjust to a new school at the time she is adjusting to a change in the time she spends with each of her parents.
I think the respondent’s concern as to moving R from the School is a legitimate one and I have made Orders accordingly.
Conduct during the hearing
This matter was made more difficult by the fact that the applicant was self-represented and although he was supported by a friend, it was still necessary to give him some guidance throughout the trial as to those matters that were relevant and those that were not. His hostility toward the mother was clearly evident especially during his cross-examination of her.
Counsel for the respondent showed considerable forbearance throughout the trial in assisting the applicant to ensure that he had the opportunity to raise relevant issues and to call witnesses by telephone.
During cross-examination the applicant had to be constantly reminded that it was he who was required to answer questions and not Counsel for the respondent. At times his attitude to Counsel was hostile and he had a tendency to lecture on what he considered to be matters of principle such as, the legitimacy of the child support regime.
The primary considerations
Subject to subsection (5), in determining what is the children’s best interest, the Court must have regard to the matters set out in ss.60CC(2) and (3). Section 60CC(2)(a) provides that the Court must consider the benefit to the child of having a meaningful relationship with both parents. Section 60CC(3)(b) requires that the Court ensure that the child is protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In deciding what is in the best interests of the child the Court must take into account the primary and additional considerations by virtue of ss.60CC(2) and (3) of the Act. Notably, these primary considerations are consistent with the objects set out in s.60B(1)(a) and (b) of the Act..
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
In this case, there are a number of relevant considerations. Firstly, it is necessary to consider the possible psychological impact on the child if she were suddenly placed in the care of the applicant for an extended of time given that she has only had limited and somewhat sporadic contact with him. Secondly, there is the potential for violence between the parents, although there is no evidence that the child herself has ever been directly subjected to violence or abuse. She has however, been present and witnessed significant violence between the parents, namely, in the hotel room during the altercation between the parents in October 2006 as well as on other occasions. The third issue is the applicant’s alcohol and drug usage which may inhibit his ability to care for the child.
I found the evidence of the respondent’s father, Mr C to be helpful.
Mr C was a cogent and credible witness and I accept his evidence completely. Mr C’s evidence showed a lack of insight on the part of the applicant as to the needs of the child. Briefly, Mr C told the Court of how the applicant had refused the assist the child’s transition from one parent to another by refusing to take objects familiar to the child and using them in such a way as to help the child feel confident in leaving her mother and going with her father who had not had an opportunity to build a close relationship with her. The reason given was that the objects has an association with the respondent.
The benefits to the child of having a meaningful relationship with both the child’s parents
The respondent was quite clear about her desire for the child to have a meaningful relationship with both parents. Her concern was that the time with the applicant should be gradually increased and that there be proper arrangements for handover so that the respondent could feel safe. Further, the applicant should not use alcohol or drugs whilst the child was in his care.
I was concerned that the applicant appeared to have little insight as to the effect of his attitudes on the child. The conduct of both parents in the hotel room when R was present does not reflect well on them.
I am, however, satisfied that R will benefit from a relationship with both parents, but that it is necessary to minimise the possibility of conflict between the parents when R might be present. Clearly, both parents love the child, she has spent most time with her mother and I accept the respondent’s submission that there should be a graduated regime to spend increased time with the applicant. This is, in the child’s best interests.
Additional considerations
I now propose to have regard to the additional considerations insofar as they are relevant by virtue of s.60CC(3).
The child expressed views and the weight those views should be given
There was no evidence before the Court as to the child’s views and as and given the child’s age this was not a relevant consideration.
The nature of the relationship of the child with each of the child’s parents; and other persons
It was quite apparent from the evidence of both the respondent and her father, Mr C, that the child has a very close relationship with the mother and with her maternal grandparents. The applicant has not had the opportunity to build such a close relationship with R and she has not had the opportunity to spend time with her paternal grandparents who are located in New Zealand.
The applicant gave evidence which I accept, that his relationship with R is growing strongly. She identifies with her bedroom and special possessions at his house. They also participate in positive activities together.
The willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The respondent has not in the past demonstrated any willingness to facilitate a relationship between the child and the father. On the contrary, she has deceived the applicant as to her intention to leave him and has failed to provide him contact details for his daughter. Understandably this has caused great distress to the father.
The applicant has not demonstrated any capacity to facilitate any relationship between the child and her mother. He remains very angry towards the respondent and appears particularly unwilling to accept that the payment of child support is either reasonable or appropriate.
At the trial, both parents accepted the importance of the child having a relationship with the other.
The capacity of each of the child’s parents; and any other person to provide for the needs of the child, including emotional and intellectual needs
It was quite clear the respondent now lives in a settled environment and that she has the support of her parents. The respondent has enrolled the child in a local pre-school group and would appear to have a network of friends amongst the other parents there. On the relatively rare occasions when the respondent is unable to look after the child the maternal grandparents are able to care for the child appropriately.
It was also clear from the evidence that the respondent is pursuing education to develop a career for herself and that she is devoted to the child’s care.
The applicant is in the process of setting up a new business and there does not appear any reason why that business will not be successful. He claims that if the business requires his time he will be able to manage both his commitment to his child and his developing workload. I am satisfied that he will make appropriate adjustments.
The applicant is renting suitable accommodation.
Accordingly, it appears that both parents are capable of meeting the child’s emotional and intellectual needs whilst in their separate care. However, given the evidence as to the applicant’s alcohol and drug use which was not disputed by him it is important that contact be conditional on him not consuming drugs or alcohol whilst the child is in his care.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent, including spending time with the child, participating in decision making about his or her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
I have already mentioned the respondent’s failure to facilitate a relationship between the child and her father. It was apparent that she had moved house on at least two occasions in a manner calculated to deceive the applicant as to her intentions and that she had failed to provide the applicant with contact details for R. As a result he was unable to participate in decisions to do with her welfare or build a relationship with her. The respondent says that this was because of her concerns about the applicant’s violence and this concern would appear to have at least some justification.
On the applicant’s part I have a number of concerns. Firstly, there had been considerable delay on his part on seeking appropriate Court orders to facilitate regular contact with the child. This was partly, but not fully explained by his reluctance to engage in the Court processes and his hope for reconciliation with the respondent. Secondly, I was concerned that there are considerable arrears of child support even though there was evidence that the applicant had the capacity to pay the amounts owing. It seemed non-payment was primarily due to hostility toward the mother and an objection to the scheme itself.
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 with whom he or she has been living
On the basis of the evidence I find that the child would clearly benefit from a graduated regime of increasing time with her father. It is apparent that the child’s stability and security come primarily from the mother and her extended family. However, the applicant’s evidence that the child is gradually becoming more comfortable with him was not disputed and I accept it together with the evidence of Mrs S.
The practical difficulty and expense of a child spending time with and communicating with a parent
As the parents live quite close to each other there does not appear to be any particular difficulty with the child spending time with each of her parents provided that the parents do not to be in physical proximity to each other.
The maturity, sex, lifestyle and background of the child and if the child is an Aboriginal child, the child’s right to enjoy her Aboriginal culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
The child’s father is from New Zealand and her paternal grandparents and extended family are from New Zealand. It is important that the child is able to become familiar with New Zealand and develop a relationship with her extended family there. The orders I have made in this matter should facilitate that contact.
The attitude each parent and each party has shown to the responsibilities of being a parent
I have previously commented on my concerns as to the behaviour of both parties. The respondent’s failure to provide the applicant with an opportunity for ongoing contact with the child shows a lack of understanding of the importance of the child having an ongoing relationship with both parents. In all other respect however, I accept the evidence of Mr C that she is a good mother. The applicant clearly lacks insight as to the potential for his behaviours to impact adversely on the child.
Any family violence involving the child or a member of the child’s family; any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
The relevance of family violence to proceedings involving children has been dealt with in Patsalou and Patsalou (1995) FLC 92-580 and
JB and BG(1994) FLC 92-515. These cases state that evidence of family violence is relevant insofar as it assists the Court in determining what Orders will be in the best interests of the child. Violence, whatever its form, may potentially cause children distress and harm. In JB and BG Chisholm J, found that family violence, particularly family violence associated with a pattern of dominance, can be relevant even where it is not directed at, or witnessed by, a child.
These authorities state that the Court should attempt to understand the nature of any violence that has occurred within the family and its potential effect on children.
Family violence is a factor in these proceedings. It is not disputed that the child witnessed significant violence between the parents in the hotel room on 7 October 2006. She also witnessed the abusive behaviour by the applicant at the respondent’s home on 20 August 2007. The respondent has taken out an AVO against the applicant. At the very least, the incident at the respondent’s home demonstrates that the applicant has poor impulse control and a very significant level of hostility toward the respondent. The evidence of Mr C as to the applicant’s behaviour at handover reinforces this concern. There was no doubt the child was upset by the violence she witnessed between her parents. I have therefore, sought to make Orders which minimise the contact between the parents which is when violence is most likely to occur.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
It is preferable in this case to make the Order that is least likely to lead to the institution of further proceedings. It is in the best interests of the child that the parents stabilise their lives. Nothing in these Orders suggests that further proceedings will be necessary.
Equal shared parental responsibility
Parental responsibility, as defined by section 61B, relates to all the duties, powers, responsibilities and authority which by law parents have in relation to children. It is presumed, pursuant to section 61 DA(1), to be in the best interests of children for their parents to have equal shared parental responsibility. This presumption is subject to sub-section(2), which states that the presumption may be rebutted where there are reasonable grounds to believe that a parent of the child has engaged in abuse of his or her child or another child who, at the time, was a member of the parent’s family (or that other person’s family); where there is family violence or where the Court concludes that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
‘Family violence’ is defined in s.4(1) of the Act to mean:
Conduct, whether actual or threatened, by a person towards or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or reasonably to be apprehensive about his or her personal wellbeing or safety.
The evidence before the Court made it clear that the applicant has demonstrated considerable hostility towards the respondent throughout their relationship and subsequent to their separation. Mr C’s evidence makes it clear that this hostility is continuing. Both parties accept that the child has been exposed to family violence and there was considerable evidence upon which I find that primarily the applicant, but both parents (the respondent in self defence), had engaged in family violence. The presumption of equal shared parental responsibility therefore has no application.
Further, both parents have exhibited a significant inability to communicate with each other in relation to the child. They were unable to agree on an appropriate method of communication between them and the respondent made it quite clear that she does not want to have regular telephone contact, email contact or physical contact with the applicant. Although a communication book had been established neither party thought it worked and there was ample evidence to suggest that the communication lines between the parties had broken down while using it.
The evidence presented to the Court made it clear that the parties were not capable of reaching agreement. As I result, I find that it is not in the best interests of the child for there to be equal shared parental responsibility. The circumstances in this case are quite different to those in Blair and Blair [2007] FamCA 253 where despite the occurrence of family violence the parties demonstrated that at the time of trial they were able to communicate appropriately about the children.
I find the circumstances of this case similar to those in Kennedy and Kennedy [2007] FamCA 1221 where Kay J sitting alone on appeal from a decision of Federal Magistrate O’Dwyer said equal shared parental responsibility was not appropriate;
‘To reasonably expect that these people, at the current stage of development in the breakdown of their relationship, would be able to rationally come together to discuss serious issues relating to the welfare of the children is in my view moving towards an unattainable goal…’
The parties could not agree as to how they would communicate in relation to the child. Direct communication is clearly not an option given the applicant’s abuse of the respondent and his obsessive telephoning. There is no evidence of any likely improvement.
In all the circumstances I find the respondent should have responsibility for decision making about the child’s welfare, subject to the orders I have made to ensure that the applicant is kept informed about major decisions. I note that the finding that equal shared parental responsibility should not apply does not exclude the applicant from making short term decision about the child’s welfare when she is in his care nor exclude him from the right to be informed. I have sought to ensure that the applicant has the opportunity to spend substantial time with the child who he clearly loves so that they can develop a strong on-going relationship. I have made orders which graduate the time spent with the applicant in order to minimise any confusion and stress for the child, especially in light of the on-going hostility between the parents. It is to be hoped that over time the parties will be capable of civilised communication about the welfare of their child.
I note that in her amended response the respondent sought orders for parental responsibility to be shared jointly between the parents. However, in his final address Mr Jurd made it clear that on the basis of the evidence equal shared parental responsibility was not an option. In any event, it is a matter for the Court and I have found that there is family violence which rebuts the presumption and that it is not in the best interest of the child that there be equal shared parental responsibility because of the hostility between them and the inability to communicate about the child in any effective way.
Conclusion
I find that the respondent has quite deliberately limited the applicant’s ability to build a relationship with the child. It is important that the applicant has an opportunity over time to develop regular contact with his daughter.
I am satisfied that the respondent is now genuine in her expressed desire that the child have a meaningful relationship with her father and that she will facilitate this, particularly if she is satisfied that neither she nor the child will be exposed to violence by the applicant, or the applicant taking drugs and alcohol whilst the child is in his care.
I am satisfied that the Orders set out at the commencement of these reasons are in the best interests of R. I have given particular weight to the primary considerations, as set out in the Act. I have balanced the benefit of the child developing a meaningful relationship with her parents, with the potential detriment that she might suffer if forced to witness some of the applicant’s negative behaviour towards the respondent, and I have found that it is in her best interests to spend time with the applicant.
In addition to the primary considerations, I have had regard to the additional considerations under section 60CC, and especially those issues that go to the parenting capacity of both parties; namely, the extent to which each parent has fulfilled or failed to fulfil his parental responsibilities, the capacity of each parent to provide for the needs of the child, and the attitude each parent has shown to the responsibilities of being a parent. Whilst both parties have exhibited behaviour, which appears to have no regard to the effect it could have on their child, I have found that the evidence clearly shows that they have each done their best to provide for the intellectual and emotional needs of the child. Provided the parties stay separated from each other, it would seem that each parent can meet his or her parental responsibilities.
Children, especially young children, need stability and routine in their lives. The specific allocation of time that the child will spend with the father, and the changeover arrangements, will cause the least disruption, and have been made in the best interests of the child.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Chief Federal Magistrate Pascoe FM
Associate: Steven Taylor
Date: 9 May 2008
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