ZEBIC & BARRON
[2015] FCCA 3613
•30 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEBIC & BARRON | [2015] FCCA 3613 |
| Catchwords: COSTS – Where respondent seeks order for costs of contravention proceedings that were settled by consent orders made on 12 November 2013 – no order for costs. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 M v M (1988) 166 CLR 69 MRR & GR (2010) 240 CLR 461 Napier & Hepburn (2006) 36 Fam LR 395: FLC 93-303; [2006] FamCA 1316 Potter & Potter (2007) FLC 93-326; [2007] FamCA 350 |
| Applicant: | MS ZEBIC |
| Respondent: | MR BARRON |
| File Number: | NCC 2955 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 17 October & 5 December 2014 |
| Date of Last Submission: | 24 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weightman |
| Solicitors for the Applicant: | Paula Tyrie Law Practice |
| Counsel for the Respondent: | Mr Graham |
| Solicitors for the Respondent: | Flintoff Lawyers |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2003, Y born (omitted) 2004 and Z born (omitted) 2010.
The Mother and the Father are to have sole parental responsibility for making decisions about day to day issues concerning the care, welfare and development of the children X, Y and Z when the children are in their respective care under these Orders.
The children X, Y and Z are to live with the Mother.
The Father is restrained from consuming alcohol at any time when all or any of the children X, Y and Z are in his care for a period of twelve (12) months from the date of these Orders.
The children X, Y and Z are to spend time with the Father at such times as the parties may agree but in default of agreement as follows:
(a)during school term time:
(i)from immediately after school or pre-school as the case may be on Friday to the commencement of school or pre-school on Monday morning PROVIDED THAT if the Monday following the weekend is a public holiday then until the commencement of school on the Tuesday morning; and
(ii)in the off week from immediately after school or pre-school as the case may be on Wednesday until the commencement of school or pre-school as the case may be on Thursday.
(b)for half of the Autumn, Winter and Spring school holiday periods in each year at such times as the parties may agree but in default of agreement as follows:
(i)for the first half of the school holiday period in 2015 and all odd-numbered years thereafter commencing immediately after the last day of the school term and concluding at 10:00 am on the second Saturday of the school holiday period;
(ii)for the second half of the school holiday period in 2016 and all even-numbered years thereafter commencing at 10:00 am on the second Saturday of the school holiday period and concluding at 5:00 on the last Saturday of the school holiday period;
(c)during the Christmas/January school holidays in from 2 January to 23 January in each year.
(d)From 9:00 am on Father’s Day to the commencement of school or pre-school as the case may be on Monday.
(e)On each of the children’s birthdays the parent who does not already have the children in her care will spend time with the children from immediately after school until 7:30pm if the birthday falls on a school day or from 9:00am to 1:00pm if the birthday falls on a day when the children are not required to attend school.
The Father’s time with the children set out in the immediately preceding Order will be suspended each year:
(a)From 12:00 noon on Christmas eve until 1:00pm on Boxing Day and the children will spend time with their parents as follows:
(i)In 2015 and all odd-numbered years thereafter from 12:00 noon on Christmas Eve to 1:00pm on Christmas Day with the mother and from 1:00pm on Christmas Day until 1:00pm on Boxing Day with the mother; and
(ii)In 2016 and all even-numbered years thereafter from 12:00 noon on Christmas Eve until 1:00pm on Christmas Day with the father and from 1:00pm on Christmas Day until 1:00pm on Boxing Day with the mother; and
(b)From 10:00am on Good Friday until 6:00pm on Easter Monday and the children will spend time with their parents as follows:
(i)In 2016 and all even-numbered years thereafter from 10:00am on Good Friday until 6:00pm on Easter Monday with the mother; and
(ii)In 2017 and all odd-numbered years thereafter from 10:00am on Good Friday until 6:00pm on Easter Monday with the father.
If the children are spending time with the Father on Mother’s Day then the time will be suspended and the children will spend time with the Mother from 9:00am on Mother’s Day until the commencement of school the following day.
Changeover where the children go from the care of one party to the care of the other in accordance with these Orders will take place in the following way:
(a)On a day when the children are not required to attend school the mother is to deliver the children to the Father’s residence at the commencement of the time and the Father will return the children to the Mother’s residence at the conclusion of the time; and
(b)On a school day the parent with whom the children are due to spend time is to collect the children from school or pre-school as the case may be at the commencement of the time and return the children to school or pre-school at the conclusion of the time.
The Father may communicate with the children by telephone between the hours of 6:00 pm and 6:30 pm each Tuesday, Thursday and Sunday for which purpose the father is to initiate the call to the Mother’s mobile telephone and the Mother is to ensure that the children are available to receive the telephone call.
The parties must ensure that the children remain enrolled in the (omitted) Public School until they conclude their primary education unless the parties otherwise agree in writing that one or more of the children is or are to attend a different primary school.
The parties must to do all things necessary is enrolled to attend the (omitted) Public School to commence Kindergarten at the commencement of the first school term in 2016.
The Application by the Respondent for an order that the Applicant pay the costs of the contravention application filed on 8 July 2013 is dismissed.
If either party seeks an order that the other party pay the costs of this proceedings that party must file and serve an affidavit setting out the amount of costs sought and the manner in which those costs are calculated within twenty-eight (28) days from the date of these Orders.
Any submission in opposition to an order for costs must be filed and served within a further period of fourteen (14) days.
Any application for costs will be considered in chambers upon the filing of the affidavit and submissions referred to in the immediately preceding Orders.
IT IS NOTED that publication of this judgment under the pseudonym Zebic & Barron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
NCC 2955 of 2010
| MS ZEBIC |
Applicant
And
| MR BARRON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of the parties’ three children, X, aged 11, Y, aged 10, and Z, aged four, for final parenting orders varying the earlier orders which were made by consent on 2nd June 2011 before Federal Magistrate Foster, as his Honour then was.
Those orders provided that, in summary:
(a) the parties would have equal-shared parental responsibility for the children;
(b) the children would live predominantly with the mother and spend time with the Father on alternate weekends from after school on Friday until 6:00pm on Sunday, one afternoon each week and other special occasions; and
(c) for a week during the school holidays at the end of the second and fourth school terms.
His Honour also made an order restraining the Father from consuming alcohol during any time that he was to spend time with the children or for 12 hours beforehand. This order was not made by consent. It appears to have been an order of the Court’s own motion. In 2013, the Mother unilaterally ceased complying with the orders of 2nd June 2011, given as her reason her concern about the breach by the Father of the order restraining him from consuming alcohol at relevant times. The parties each commenced contravention proceedings.
The contravention applications were listed for final hearing on 31st October 2013. They were adjourned part heard to 12th November 2013. On 12th November 2013, when the matter came back before his Honour Judge Coakes, the parties entered into Consent Orders suspending all but one of the orders of 2nd June 2011 and providing for the children to spend time with their father during the day on Saturdays and Sundays on each alternate weekend. The Father was to undertake CDT testing on two occasions. The proceedings were then adjourned to 6th March 2014 for further mention.
On 6th March 2014, the parties entered into further interim consent orders providing that:
(1) Order 1, 2 and 3 of orders made on 12th November 2014 are discharged;
(2) the children, X, born (omitted) 2003, Y, born (omitted) 2004 and Z, born (omitted) 2010, spend time with the Father as agreed but, failing agreement, each alternate weekend from 10:30am to 4:30pm on Saturday (with the Father permitted to attend the netball game for X and Y at 9:30am) and 8:30am to 4:30pm on Sunday commencing 15th and 16th March 2014;
(3) the Father must collect the children from the netball courts where X and Y are playing netball on Saturday or otherwise from the Mother’s home at the commencement of the time and the Mother much collect the children from the Father’s home at the conclusion of the time;
(4) the parents must ensure that the children attend all their sporting events that fall during the time that the children are in each parent’s care;
(5) the parties are restrained from speaking badly about the one another to the children or in their presence or hearing;
(6) the Father shall undergo one CDT test per cent month, such testing to occur on the second week of each month commencing March 2014, the cost of such testing to be borne equally by the parties with the mother to reimburse the father half the cost upon receipt of invoice from the father and the father must provide the results of the testing to the solicitor for the mother as soon as reasonably practicable.
Notation:
a.the Father intends to seek overnight time with the children when the matter is next before the court;
b.pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences it may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.”
Counsel for the Mother informed the Court that the parties had agreed between themselves to expand the time provided in those orders to include the children spending one overnight with the Father from August 2014.
Orders Sought
By her Amended Initiating Application filed on 22nd September 2014, the Mother seeks the following orders:
1. All previous orders are discharged.
2. The parents have shared equal parental responsibility for the children (“the children”) (a) X, born (omitted) 2003 (“X”), (b) Y, born (omitted) 2004 (“Y”), (c) Z, born (omitted) 2010 (“Z”).
3. The children live with the Mother.
4. The Father is restrained from consuming alcohol from 12 hours prior to and during any time he spends with the children until the youngest attains12 years of age.
5. If any child or children report to the Mother when they are spending time with the Father that the Father has consumed alcohol at such time, then the Mother is to attend the Father’s residence for the purpose of collecting the child/children forthwith.
6. The children spend time with the Father as agreed between the parents but failing agreement as follows:
6.1 during NSW school terms for a period of three months:
6.1.1 each alternate weekend from 10:30am Saturday to 6:00pm Sunday;
6.1.2 each week from after school/day care Wednesday to 8:00pm;
6.2 during NSW school holiday for a period of three months:
6.2.1 the time in order 6.1 is suspended each year from 12 noon on Christmas Eve to 1 pm Boxing Day and the children spend time with the parents as follows:
6.2.1.1 in even-numbered years from 2 pm on Christmas Eve to 3:30pm Christmas Day with the father and from 3:30pm Christmas Day to 1 pm Boxing Day with the Mother;
6.2.1.2 in odd-numbered years from 2 pm to 5 pm Christmas Eve with the father, then 5 pm Christmas Eve to 3:30pm on Christmas Day with the Mother and then from 3:30pm Christmas Day to 1 pm Boxing Day with the Father;
6.2.1.3 on Z’s birthday, the parent who does not already have the children in their care will spend time with the children from 9:00 am to 1:00 pm.
7. The children then spend time with the Father as agreed between the parents but, failing agreement, as follows:
7.1 during NSW school terms 1, 2, 3 and 4:
7.1.1 each alternate weekend from after school/day care Friday to 6:00 pm Sunday;
7.1.2 each week from after school/day care Wednesday to 8:00pm;
7.1.3 for half of NSW school holidays in term 2 as agreed between the parents but failing agreement for the second half commencing at 10:00am on the second Saturday of the holidays and concluding at 5 pm on the last Saturday of the holidays;
7.1.4 in NSW December/January school holidays in even years from 31st December 12 noon to 6th January 12 noon an in the alternate years from 2nd January 12 noon to 9th January 12 noon;
7.1.5 Father’s Day from 9:00am to 6:00pm;
7.1.6 Easter time in even-numbered years from 9:00am Good Friday to 3:30pm Easter Sunday and in odd-numbered years from Easter Sunday 3:30pm to 8:00pm;
7.1.7 on each child’s birthday the parent who does not already have the children in their care will spend time with the children from after school to 6:00pm if it falls on a school day and from 9:00am to 1:00pm if on a non-school day.
8. If the children are spending time with the Father on Mother’s Day, then the time is suspended and the children spend time with the Mother from 9:00am to 6:00pm.
9. The Father’s time at order 7.1 be suspended from 18th November to 15th December ever two years commencing 2015.
10. Handover on a non-school day by the Mother delivering the children to the Father’s house at commencement and Father return the children to the Mother’s home at conclusion and on a school day by the parent with whom the children are due to spend time with, collecting the children from school/day care at commencement of time and returning the children to school/day care at the conclusion of time.”
By his further amended response, filed on 8th October 2014, the Father seeks the following orders:
1. All previous orders are discharged.
2. The parents have shared equal parental responsibility for the children (“the children”) (a) X, born (omitted) 2003 (“X”), (b) Y, born (omitted) 2004 (“Y”), (c) Z, born (omitted) 2010 (“Z”).
3. The Father and the Mother have parental responsibility for making decisions concerning the children in respect of issues relating to their day-to-care welfare and development of the children when they are in their respective care.
4. The children live with the Mother.
5.The children spend time with the Father as agreed between the parents but failing agreement as follows:
During NSW school terms 1, 2, 3 and 4:
5.1.1 each alternate weekend from after school or preschool (in the case of Z) Friday to before school/preschool Monday; and
5.1.2 each week from after school Wednesday to before school Thursday.
5.2 For half of the NSW school term 1, 2, 3 and 4 holidays as agreed between the parents but failing agreement:
5.2.1 for the second half in even numbered years, commencing at 10 am on the second Saturday of the holiday period and concluding at 5 pm on the last Saturday of the holiday period; and
5.2.2 for the first half in odd numbered years, commencing at the conclusion of school on the last day of the term and concluding at 10 am on the second Saturday of the holiday period.
5.3 From 9 am on Father’s Day to before school/preschool on Monday.
6. On each child’s birthday the parent who does not already have the children in their care will spend time with the children from after school to 7:30pm if it falls on a school day or from 9:00am to 1:00pm if a non-school day.
7. The time in Order 5 is suspended each year from 12 noon on Christmas Eve to 1:00pm Boxing Day, and the children spend time with the parents as follows:
7.1 in odd numbered years from 12 noon on Christmas Eve to 1 pm on Christmas Day with the mother and from 1 pm on Christmas Day to 12 noon Boxing Day with the father;
7.2 in even numbered years from 12 noon on Christmas Eve to 1 pm on Christmas Day with the father, and from 1 pm on Christmas Day to 12 noon on Boxing Day with the mother.
8. The time in Order 5 is suspended each year from 10:00am Good Friday to 6:00pm Easter Monday and in lieu the children spend time with the Father from 10:00am Good Friday to 6:00pm Easter Monday in odd numbered years, and from 10:00am Good Friday to 6:00pm Easter Monday with the Mother in even numbered years.
9. If the children are spending time with the Father on Mother’s Day, then the time is suspended and in lieu the children will spend time with the Mother from 9:00am on Mother’s day to the commencement of school the following day.
10. To facilitate the time in order 5 to 9, the parties will effect changeover as follows:
10.1 On a non-school day, the Mother will deliver the children to the Father’s house at the commencement of the time and the Father will return the children to the Mother’s house at the conclusion of the time; and
10.2 On a school/preschool day, the parent with whom the children are due to spend time with will collect the children from school/preschool at the commencement of the time and return the children to school/preschool at the conclusion of the time.
11. The children will communicate with the Father by telephone between 6:00pm and 6:30pm each Tuesday, Thursday and Sunday, with the Father to initiate the call to the Mother’s mobile telephone, and the Mother to ensure the children are available to receive the telephone call.
12. The parties must ensure the children remain enrolled in (omitted) Public School unless otherwise agreed in writing until they commence high school. At which time, the parties will decide which school the children should be enrolled.
13. The parties must ensure that the child, Z, is enrolled at (omitted) Public School to commence kindergarten at the commencement of the 2015 school year.
14. The Mother must pay the Father’s costs of the contravention application, filed 8th July 2013, in the sum of $5000 plus GST.
15 The Mother pay the Father’s costs of an incidental to these proceedings.
16. The Mother reimburse the Father one half of the costs of the CDT test undertaken by him in accordance with orders dated 12th November 2013 and 6th March 2014, being $171. 70.
Issues
The issues in this matter have been succinctly summarised by counsel for the Father, Mr Graham, in his written submission under the heading “The Remaining Issues”:
1. Whether the time the children spend with the Father ought to be extended to include from the conclusion of school on a Friday to before school the following Monday and each Wednesday to before school the following Thursday and during the school holidays.
2. Whether the restraint on the Father’s consumption of alcohol ought to remain.
3. At what point should the child, Z, commence kindergarten: Father, 2014; Mother, 2016.
Evidence and Submissions
The Mother relied on her affidavit of 23rd September 2014. She gave oral evidence and was cross‑examined by Mr Graham of counsel for the Respondent Father. The Mother’s cross‑examination was not completed on 17th October 2014 and the proceedings were then adjourned part heard to Sydney on 5th December 2014. Her evidence continued on that day.
The Father relied on (a) his affidavit of 17th September 2014 and (b) the affidavit of his current wife, Ms C, of 15th September 2014.
They each gave evidence and were cross‑examined by Mr Weightman of counsel for the Applicant Mother. As the evidence took up the entirety of the available hearing time, counsel for the parties provided written submissions to the Court. In his written submissions on behalf of the Father dated 17th December 2014, Mr Graham submitted that given the order that the Mother sought at Orders 2 and 7 of her amended application, filed on 24th September 2014, that the Court is bound by the legislative pathway set out in Goode & Goode (2006) FLC 93-286 and MRR & GR (2010) 240 CLR 461.
In this case, the Court is relieved of dealing with the issue of the rebuttal of presumption of equal shared parental responsibility as both parties seek this order, which then the Court is obliged to consider, both the advisability and practicability of the children living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other (see section 65DAA).
The Father submits that his proposal sits comfortably with the definition of substantial and significant time and that there is no evidence that would militate against this (Section 65DAA (3)). As to the second point, it was submitted that the Mother made a detailed and specific complaint about the Father’s alleged abuse of alcohol. In her affidavits, the Mother explained how her belief was informed by the statements made by the children to both herself and to other people over a period of months.
A large amount of the Mother’s material in her affidavit sworn 23rd September 2014 was objected to and excused from the evidence. The Mother was given leave to file further material from another witness which she failed to do. This went to issue number 3. However, she also failed to produce a number of significant material witnesses that would have supported her assertions. The Mother was invited to explain the submission; however, she did not do so.
The Mother had filed an earlier affidavit in the proceedings on 8th July 2013 and some of its material was included in her most recent affidavit of 24th September 2014. In the second affidavit the Mother altered her evidence by omitting occurrences and in particular an email which was tendered in which she (a) unilaterally ceased contact and (b) advised that she had informed others, including the children’s teachers, of this and her allegations that the Father was a risk to the children. The Mother changed her evidence at paragraph 45 the times and dates. Paragraph 46 and 53 offered different versions.
The Mother also omitted parts of conversations she allegedly had with the children. The Mother added new evidence in her most recent affidavit. It was submitted that the Mother’s evidence at paragraph 48 was completely at odds with her evidence of her affidavit of 2nd July 2013 in paragraph 34. It was further submitted that given the Mother was effectively wholly reliant on her own affidavits and there was no independent evidence to support her complaints, the Court must have serious doubts as to the credibility of her evidence.
If anything, all that the Mother’s affidavit revealed was the attempts by the Mother to enmesh the children and draw them into the litigation. In a desperate attempt to gain some credibility, the Mother tried to point to the Father’s bank statements which showed purchases from premises known as (omitted); however, she could not establish a nexus between the purchases and risked the children as a result.
More importantly, the Father complied with the consent orders to complete CDT testing and provided numerous results to the Court, none of which would cause the Court any concern. It was submitted that having regard to subsection 60CC(2) (a) and the authorities by which the Court is bound are M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93-326 and the standard of proof which governs evidence touching upon allegations of serious misconduct, section 140 of the Evidence Act 1995 (Cth), the following conclusions are inevitable: (a) the Father did not abuse alcohol or consume alcohol nor are the children at an unacceptable risk when they are with the father and (b) he does not pose a risk into the future.
As to the issue of the child, Z attending kindergarten, it was submitted that Z would attain the age of five years in January 2015. The Father would like Z to attend kindergarten in 2015 and the Mother for him to go to school in 2016. The Mother tried unsuccessfully to introduce evidence that suggested that Z was not sufficiently mature to attend kindergarten and when that evidence was rejected, sought and obtained leave to call fresh evidence in this regard but failed to do so. Under cross‑examination, the Mother had commented that she said words to the father to the effect of:
This is my last child. I want him to be with me a little longer.
Although it was conceded that those were not the Mother’s precise words. It was submitted on behalf of the Father that not only was this contradictory to the Mother’s own argument but was also contrary to the subpoenaed evidence from the child’s preschool which suggests an outgoing child with an appropriate level of maturity. It was submitted on behalf of the Father that in respect of the three areas in dispute in relation to 1, the orders he seeks at the time with are appropriate and child focused. 2, he has not and does not, pose a risk to the children. And, 3, there is no evidence to support the Mother’s proposal that the child should commence kindergarten in 2016.
Mr Weightman of counsel submitted, on behalf of the Mother, that the issues between the parties were, (a), whether the restraint upon the Father drinking alcohol from 12 hours prior to and during the time he spend with the children should continue. (b) The amount of time the children should spend with the Father. And, (c), whether Z should commence formal schooling in 2015 or 2016.
It was submitted, correctly, that the Court must make orders in accordance with what is found to be in the children’s best interests, as provided by section 60CA of the Family Law Act. The determination of what is in the children’s best interests must be made by reference to criteria set out in section 60CC.
In the event of an order providing for equal shared parental responsibility, which the parents both seek in this case, the Court is obliged to consider first – firstly, is equal time in the best interests of the child and reasonably practicable. In the absence of such an order, whether substantial and significant time is in the best interests of the child and is reasonably practicable.
Neither party sought an order for equal time. The Court could therefore comfortably conclude such an order would not be in the children’s best interests. It was submitted that the time orders proposed by the Mother in her amended initiating application and the Father in his further amended response, both meet the definition of substantial and significant time.
On the question of alcohol restraint, it was submitted that the Mother gave detailed and extensive evidence of reports made to her by X, Y and A, the Mother’s child from a former relationship regarding the Father’s drinking. The Father’s evidence in his affidavit was silent on the issue of his alcohol consumption.
The Mother was cross-examined about some minor variations between her trial affidavit and previous affidavits but it was submitted that no matters of any tangible concern were exposed and the Mother’s evidence was consistent in all material aspects. The notes produced by (omitted) and (omitted) Public School were replete with notes of complaints and concerns from X and Y regarding the Father’s drinking.
It was submitted that the attitude of the Father to the issue of alcohol in these proceedings can be described as dogmatic and lacking in insight and the Father refused on a number of occasions in his cross-examination to even acknowledge that his alcohol consumption is an issue in these proceedings.
Mr Weightman went on to submit that what is perhaps most concerning is that regardless of the Father’s attitude to whether or not the complaints of X and Y were justified he continued despite the pleas of his children to want to consume alcohol. It spoke volumes it was submitted of the Father’s lack of understanding and appreciation of the concerns of his children.
It was further submitted that the Mother does seek a variation of the current restraint. The Mother’s proposal was that it continue until the child Z turns 12. Currently it is until Z turns eight. Given the concerns regarding the Father’s alcohol consumption which have continued long past X and Y having turned eight, it is sensible therefore that there should be such an extension of the alcohol intake.
Mr Weightman submitted that the Court would be comfortably satisfied on the basis of the submissions that the Father had breached the restraint imposed on 2nd June 2011. As for the lack of corroborative witnesses, Mr Weightman submitted that the most important witnesses would be the children who plainly could not be called. Secondly, he submitted there was a plethora of material produced on subpoena which has been tendered which recounts the children’s versions which confirms the Mother’s evidence of the children’s complaints.
Thirdly and perhaps most importantly, the submission completely ignores the contextual chronology of the proceedings. He referred to the order made by Federal Magistrate Foster on 2nd June 2011, which was in these terms:
The father is restrained from consuming alcohol from 12 hours prior to and during any time he spends with the children until Z, born (omitted) 2010, turns the age of eight years.
His submission was that the order was made over the objection of the Father, in circumstances where the parties have otherwise resolved all other parenting orders between them. The Father, he noted, was represented by a solicitor at the time. Effectively, Mr Weightman submitted it was the Father who was seeking to discharge an order which was made by the Federal Magistrates Court.
This Court cannot and should not go behind that order, particularly in the context that objection was taken to and material was struck out from the Mother’s affidavit on the first day of the hearing before this court on the basis that it was historical and this Court should not re-examine those matters.
Further it was submitted that any submission made against the Mother in respect of not calling witnesses could be made against the Father. Indeed, it is more detrimental to the Father’s case given that he was the one seeking to displace the current alcohol restraint.
Submissions were made about the Father having taken the children to (omitted) in November 2012 for a holiday. The Father took Z with him, despite the Consent Orders made in June 2011 not allowing for such time. Mr Weightman noted that the Mother gave evidence about an event occurring on 6th January 2013, which was that the Father had rung her and demanded she come and get X and Z.
The Father conceded in cross-examination that he had and had yelled at her to come and get X and Z. He denied in his evidence that he was drinking, although he conceded that he had friends at the house but asserted he was not drinking. Reference was made to subpoenaed material concerning the Father’s discussions with his general practitioner on 7th November 2013 that he admitted to having up to six beers once every two weeks but not with the children present.
Mr Weightman referred to the issue of CBT testing. He said that what the Father was asserting, that all of his CDT test results supported his assertion that his consumption of alcohol was not excessive. It was submitted, however, that the results the tests were equivocal for a significant period of time.
From the commencement of testing in November until April, all results recorded that the CDT were raised and whilst not being able to indicate probable recent alcohol excess, it was certainly possible. This, it was submitted, was even more apparent given the general reduction in readings over time.
It is not a big step for the Court to accept that the Father had probably moderated his alcohol consumption throughout the course of these proceedings. On the question of the waiver of the CDT testing, it was noted that the Mother had maintained her concern about the Father’s consumption of alcohol, even though she agreed with an application made on behalf of the father on the first day of the hearing on 17th October 2014 that the order number 6, made on 6th March 2014, requiring the Father to undertake CDT testing, should be discharged. That order was, in fact, made.
Mr Weightman submitted that it was to the Mother’s great credit that she acknowledged the Father’s results from CDT testing were reducing and the children had not reported any problems in recent times. He submitted that that was consistent with the Mother agreeing in the absence of any compulsion from the Court to allow the children to recommence spending overnight time with the Father in August 2014.
It was also entirely consistent with what the eldest child, X, is recorded to having said that things were better than before because the Father was not drinking. The submission is, however, that because the parent under the glare of the court proceedings has been able to moderate their consumption of alcohol does not mean that concerns held by the other party would just evaporate.
The Mother could have insisted the CDT testing continue until Z attains his majority but such an arrangement of course is not practical so where it was asked rhetorically does the Court draw the line? As to the current state of the Father’s alcohol consumption, it was submitted that the Court may well conclude that the Father’s current wife Ms C who married the Father on (omitted) 2014, has had an effect on the Father’s reduced consumption of alcohol which is what the CDT test results show.
Certainly the children and the Mother speak positively about Ms C. However, this does not resolve the issue that the Father’s position is that he wishes to drink alcohol in the presence of the children. As outlined above, the school’s real concern is the children X and Y.
On the subject of the time the children should spend with the Father, Mr Weightman submitted the parents agreed in 2011 that the best parenting arrangement for their children was for time to be spent with the Father on alternate weekends from after school Friday to Sunday evening, with time afternoon each week. The reason the matter has returned to Court was due to the Mother’s concerns regarding the Father’s consumption of alcohol.
Mr Weightman submitted that whilst the Court commonly makes parenting orders, the children will spend alternate weekends from after school Friday to before school Monday with one parent. This is not something that these children have ever experienced. There is no evidence whatsoever that the children’s relationship with their father has suffered. The Father describes the relationship as strong. There is no valid reason to upset this arrangement.
It was further submitted that the Mother can clearly be trusted to agree to lengthier time with the children and their father in the future if it warranted. She agreed to overnight time in August 2014, when she considered it appropriate without the intervention of the Court. The Father’s proposed orders provided for five nights each fortnight. Mr Weightman submitted there was no explanation at all for such a massive increase in the amount of time the children spend with the Father. The Court may take judicial notice of the fact that such an arrangement is not unusual but the Court needs to ignore such a usual arrangement and focus upon the history of this matter and the wishes of the children.
Further, it was submitted that it could not be suggested on the state of the evidence in this case, that there was anything to be gained in adopting the orders proposed by the Father which would most likely cause significant concern and disruption to the children noting the expressed wishes of the girls Y and X.
It was submitted the Mother’s proposed orders satisfy the definition of substantial and significant time and are in the children’s best interests.
As for the commencement of school by Z in 2015, as opposed to the mother’s wishes for it to commence in 2016, Mr Weightman noted that as the child was born on (omitted) 2010, he would just be five if he were to commence school in 2015.
The Father disagreed with the Mother’s view that the child lacks the majority to commence school in 2015. He submitted that it was to the Mother’s great credit that she was honest when questioned about her conversation with the Father about Z being her last baby and enjoying the time she was able to spend with him.
However, it could not be suggested that that was the Mother’s reason for wishing Z to delay commencing school until 2016. He went on to submit that the Mother, who has had the absolute vast majority of the care of three other children, gave evidence in cross-examination in respect of each of the children and demonstrated she had a great deal of knowledge and insight into the development of the children and she clearly knew the children well. Mr Weightman submitted that the Court would comfortably conclude that the Mother had given rational reasonable reasons and genuine thought to the issue of when Z should commence school.
In the circumstances where the Mother had had the absolute vast majority of Z’s care for his entire life, the Mother he submitted was best placed to determine whether Z should commence school in 2015 or 2016.
The law to be applied in parenting proceedings.
When considering the law to be applied in proceedings of parenting orders the court is bound to consider a number of matters set out in Part VII of the Family Law Act 1975. In particular, the court must consider section 60B of the Act which sets out the objects of Part VII and the principles underlying those objects.
The Court must consider section 60CA which provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how it is that a Court determines what is in a child’s best interests. The primary considerations are to be found in subsection 60CC(2) and consist of (a) the benefit of the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Subsection 60CC(2A) provides that in applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b), that is to say, the need to protect the child from physical or psychological harm. Subsection 60CC(3) sets out the additional considerations and they are to be found at paragraphs (a) through to (m) of the subsection. They include, at paragraph (a), any views expressed by the child and any factors, such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views.
The Court must also consider the matters in section 61DA of the FamilyLawAct. Section 61DA refers to the presumption of equal shared parental responsibility when making parenting orders. Subsection (1) provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, under subsection 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent of the child has engaged in either abuse of the child or another child or family violence.
Subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child.
Where a court does make an order for a child’s parents to have equal shared parental responsibility the court must consider the matters in section 65DAA of the Family Law Act. Subsection (1) states that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child the court must (a) consider whether the child spending time with each of the parents would be in the child’s best interests and (b) consider whether the child spending equal time with each of the parents is reasonable practicable and (c) if it is, consider making such an order providing for the child to spend equal time with each of the parents.
However, under subsection 65DAA(2), if the Court does not make an order for the child to spend equal time with each of the parents when an order has been made that the parents are to have equal shared parental responsibly for the child the Court must then consider (a) whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and (b) whether spending substantial and significant time with each of the parents is reasonably practicable and (c) if it is, consider making an order providing for the child to spend substantial and significant time with each of the child’s parents.
All of these matters have been considered in making this decision.
Conclusions
I have heard oral evidence from the Mother who was cross-examined at some length on both days of the hearing. I have heard oral evidence from the Father and from his wife, Ms C. I note that the Mother said in her evidence of 17th October that she wanted the Father to have a relationship with the children. What was needed was getting the children to have confidence in the Father. She denied suggesting to the children that the Father had a problem with alcohol.
She went on to say that the children had been seeing their father on a Wednesday afternoon until 8:00pm and on a Sunday since 30th August. She agreed that there had been no CDT testing since the parties were in Court on 17th October when the order was discharged and agreed that since then there had been no incidents relating to the consumption of alcohol by the Father. She went on to say, however, that she had concerns about what the children reported to her about the Father’s consumption of alcohol although she conceded there had been a decrease over time of his alcohol levels.
She said that she had not met the Father’s new wife saying that the Father would not allow it. She conceded that the contravention application she had brought had been withdrawn and conceded that the contravention proceedings were settled on 12th November.
Mr Barron gave evidence. He said that he was calling his new wife Ms C to give evidence; she was his only other witness. He said that these proceedings had been commenced by contravention applications. He denied that he had ever drunk to excess in the presence of the children and said the children had never seen him drunk.
He said the child A who had been referred to in the evidence was a half sibling to X, Y and Z. She spends some time with her natural father but that is almost negligible. The child A is about 15 now. He said the children had not seen him drink since 2011. He did say that he had probably been drinking about 12 beers a week until a few months ago. He went on to say that he wanted Z to go to school at the commencement of the 2015 school year. He thought the child was ready. He said that the Mother did not think the child was ready and thought that the child lacked maturity.
He worried Z would be 18 by the time he does the high school certificate if he does not start school in 2015. He would not concede that the mother was a “pretty good mother” to the children when asked in cross-examination. He went on to say he thought that she had done terrible damage to them. He was asked a question from the Bench about the Mother having asked to meet Ms C, the Father’s new wife, noting that the new wife and the Father had had a baby. He said that he did not want the Mother to be near his new family.
The Father did not help his case by the manner in which he gave evidence, which appeared on my contemporaneous notes to be overly confident and at times flippant. By comparison, the Father’s new wife, Ms C, appeared to be an extremely nice person. She gave clear and what appeared to me to be accurate evidence. She said that she had only three weeks previously given birth to a baby girl by the name of B. She was asked if X, Y and Z were “pretty good children” and she said “They’re gorgeous.”
She noted that the girls were concerned about their parents arguing in court. She confirmed that she had not met the Mother. When she was asked if she was willing to meet the Mother and she said she would if there was a need to.
In considering all these matters, I note that the parties concede that there should be an order for equal shared parental responsibility. However, as Mr Weightman submits and I believe correctly, the fact that neither party seeks an equal time order and each party seeks a substantial and significant time order even though the nature of the orders is different is a matter to which the Court should give considerable weight.
I intend to make an order that parties should have equal shared parental responsibility to the children. I am not satisfied that this is a case that it has been shown that it is in the children’s best interests to spend equal time with each parent. The level of communication between the parents is not nearly good enough to make this in the children’s best interests and more importantly reasonably practicable. The best interests of the children must remain the paramount consideration. As to the issue of the Father’s consumption of alcohol, there should to my mind be some restraint and in line with the Father’s own evidence, I propose to order that the Father is restrained from consuming alcohol at any time when all or any of the children are in his care and that this order should continue for a period of 12 months.
I do not see from the evidence before me, that there is a need to extend that order until the child Z attains the age of 12 years. I am of the view that there should be increased time for the children with the Father and that the time should commence from after school or preschool on the Friday until the commencement of school or preschool on the Monday morning.
In the off week the time should be from immediately after school or preschool on the Wednesday until the commencement of school or preschool on the Thursday. This will provide that each fortnight the children will spend five nights in the care of their father. Whilst it was submitted that this is not only a usual arrangement but the Court should not be bound by that, I would prefer to characterise it as a not unusual arrangement. There is no evidence to suggest the children have suffered from overnight time with the Father, far from it.
I regard the presence of the Father’s new wife, Ms C, as a positive factor. The evidence before me indicates that she has a good relationship certainly with the two girls. I formed a very favourable view of her as a person and I am satisfied that she would help to provide a safe and stable environment for the children in the Father’s home.
The issue of the child Z commencing school in 2015 or 2016 is an issue where the parents have different views. Z would only just attain the age of five in 2015. His birthday is (omitted). He would be amongst the youngest children in the year.
It is not uncommon although there is no specific evidence for children who commence school very early to struggle at some stage and have to repeat a year in primary school. The Father has a concern that the child could be undertaking the high school certificate when he is 18 years of age. I think the best answer to that is so what? There are many children and it is a matter which the Court can take notice because it occurs in the community all the time who attain the age of 18 during their final year at school.
It is quite common and it was always going to be likely when arrangements were made in the 1960s with the introduction of the (omitted) Report scheme to add an extra year of high school when the old Leaving Certificate was abolished and the Higher School Certificate was commenced. Adding an extra year of High School makes it more likely that children are going to turn 18 during their final school year in any event. There is no expert evidence either way as to the child’s state of maturity. I accept the submissions of counsel for the Mother that the child has spent most of the time in the care of the Mother as opposed to the Father and the Court can be satisfied that her assessment of the child’s maturity, bearing in mind she has older children, is fairly accurate.
In my view, if the child commences school in 2016, having just turned six, he will be one of the older children in his year and he is more likely to have obtained the necessary degree of maturity.
The other issue that the father wanted was costs of the contravention proceedings. I heard no submissions on that. The fact is that there are contravention proceedings on both sides, as each party brought a contravention application, the contraventions were effectively settled in the consent orders made before his Honour Judge Coakes on 12th November 2013 even though the Consent Orders do not specifically refer to them.
If either party had wanted an order for costs they should have made that application to his Honour on 12th November 2013. It is far too late to go back to the effective settlement of the contravention proceedings and look at the question of costs at this stage. I do not propose to accede to the application for costs in the contravention proceedings.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 8 July 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Procedural Fairness
-
Remedies