Ahrens and Ahrens
[2013] FMCAfam 273
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AHRENS & AHRENS | [2013] FMCAfam 273 |
| FAMILY LAW – Parenting – interim proceedings – children’s wishes – father’s anger and emotional issues – weight to be afforded to protective factors. |
| Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 MRR v. GRR [2010] HCA 4 Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS AHRENS |
| Respondent: | MR AHRENS |
| File Number: | WOC 63 of 2011 |
| Judgment of: | Foster FM |
| Hearing date: | 27 February 2013 |
| Date of Last Submission: | 27 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Rachel Stubbs & Associates |
| Counsel for the Respondent: | Ms de Vere |
| Solicitors for the Respondent: | Barkus Doolan Kelly |
ORDERS
That pending further order the Court orders:
That the children [X] born [in] 2002 and [Y] born [in] 2003 live with the mother.
That the father forthwith enrol in and complete an anger management course with an organisation approved by Family Consultant Ms S of the Wollongong Registry of this Court and provide to the mother’s solicitors certification as to his completion of that course.
That the children spend time with the father as follows:
(a)each alternate weekend commencing 2 February 2013 from 9.00am until 5.00pm Saturday and then from 9.00am until 5.00pm Sunday on such weekends;
(b)that for the purposes of the children's time with the father pursuant to this order such time be supervised by the paternal grandmother and/or the paternal aunt Ms N;
(c)that for the purposes of this order changeovers be effected at the McDonald's Family Restaurant at [D].
That the father’s time with the children be suspended as necessary as follows:
(a)on Mother's Day from 9.00am;
(b)from 12 noon Easter Sunday;
(c)on the mother's birthday.
That the father have reasonable telephone communication with the children each Monday and Wednesday between 7.00pm and 7.30pm with the father to facilitate such communication by telephoning the children on the mother's mobile phone or the child [X]'s mobile phone and for the purposes of this order the mother shall ensure that both mobile phones are available to receive such calls.
That that the father be restrained from consuming alcohol for a period of eight hours prior to and during such periods as the children are to spend time with him.
That neither party shall denigrate the other party, their family or any other person within the presence or hearing of the children or allow the children to remain in the presence or hearing of any person who is denigrating either party, their family or any other person.
That both parties be and are hereby restrained from discussing these proceedings or any issue in these proceedings with the children or with any other person within the presence or hearing of the children.
That whilst the children are in each party's respective care they shall advise the other as soon as practicable of any major medical issue involving the children or either of them and each party shall keep the other properly informed of any required treatment or medication for the children and each party shall ensure the proper administration of such medication and treatment is undertaken by each of them.
That the parties use a communication book which book shall travel between the parties via the children for the purposes of exchanging information pertaining to the children, including details of medical treatment, school activities, extra curricular activities and other occasions relevant to the welfare of the children.
IT IS NOTED that publication of this judgment under the pseudonym Ahrens & Ahrens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 63 of 2011
| MS AHRENS |
Applicant
And
| MR AHRENS |
Respondent
REASONS FOR JUDGMENT
Proceedings
These are parenting proceedings commenced by the applicant mother by application filed on 13 December 2012.
The mother seeks parenting orders in relation to the children [X] born [in] 2002 and [Y] born [in] 2003.
In her amended application filed on 13 February 2013 the mother seeks interim orders in relation to the children that in summary provide for:
a)the children to live with the mother,
b)the mother to have sole parental responsibility for the children,
c)that the father enrol in and complete an anger management course,
d)that pending completion of the anger management course the father spend supervised time with the children each Saturday from 10.00am until 2.00pm,
e)that upon completion of the anger management course the children spend time with the father as follows:
i)each alternate weekend from after-school Friday until before school the following Monday,
ii)Fathers Day from 9.00am to 5.00pm,
iii)at Christmas in even numbered years from 12.00pm Christmas Day to 4.00pm Boxing Day and in odd numbered years from 4.00pm Christmas Eve until 12.00pm Christmas Day,
iv)at Easter in odd numbered years from 4.00pm Easter Saturday until 12.00pm Easter Sunday and in even numbered years from 12.00pm Easter Sunday until 4.00pm Easter Monday,
v)on the father’s birthday from after-school or 3.00pm until 8.00pm,
vi)by telephone between 6.00pm and 6.30pm each Tuesday and Thursday,
vii)at such other times as may be agreed between the parties,
viii)that otherwise the father’s time with the children be suspended at certain times on the children’s birthdays, Mother’s Day, during the Christmas festive period, Easter and the mother’s birthday.
Otherwise the mother sought various specific issues orders in relation to telephone communication, non-denigration, mutual notification as to health issues, the use of a communication book and the mother being permitted to travel to the United Kingdom each alternate year for a period of not more than four weeks.
In support of the interim application the mother relied on the following documents:
a)her affidavit filed on 13 December 2012,
b)her affidavit filed on 30 January 2013,
c)affidavit of Ms B filed on 30 January 2013,
d)affidavit of Mr B filed on 31 January 2013,
e)affidavit of Ms G filed on 30 January 2013.
The father filed a response on 19 December 2012. In that response he sought both final and interim orders in relation to parenting.
The father sought interim orders as to parenting that in summary provided for the following:
a)that the father and mother have joint shared parental responsibility for the children,
b)that the children live with the mother,
c)that the children spend time with the father as follows:
i)each alternate week from the conclusion of school on Monday until the commencement of school on the following Monday,
ii)during school holidays from 3.00pm Monday to 3.00pm on the following Monday,
iii)9.00am to 5.00pm on Father’s Day,
iv)for time on the father’s birthday,
v)in even-numbered years from 4.00pm Christmas Eve until 12.00pm Christmas Day and in odd numbered years from 12.00pm Christmas Day until 4.00pm Boxing Day,
vi)in even-numbered years from 4.00pm Easter Saturday to 12.00pm Easter Sunday and in odd-numbered years from 12.00pm Easter Sunday until 4.00pm Easter Monday,
vii)for time on the children’s birthdays,
viii)that otherwise the children’s time with the father be suspended on Mother’s Day, for specific time at Christmas, for specific time at Easter and time on the children’s birthdays,
ix)that otherwise as agreed between the parties in writing.
The father otherwise sought specific issues orders in relation to changeovers, telephone communication, the use of a communication book, mutual information as to residential addresses and phone contact numbers, notification in relation to medical circumstances relating to the children, both parties being able to deal directly with the children school and sporting bodies, both parties being able to attend sporting school or special events the children participating and mutual non-denigration.
In support of the interim orders sought by him the father relied upon:
a)his affidavit filed on 19 November 2012,
b)his affidavit filed on 29 January 2013,
c)the affidavit of the paternal grandmother Ms S filed on 25 February 2013.
The parties finalised outstanding property issues by reason of consent orders made on 1 March 2012.
Proceedings were before the court as to parenting on 19 December 2012. On that day the court adjourned proceedings for further directions or interim hearing to 1 February 2013. The court further ordered that the parties attend a child inclusive child dispute conference with a family consultant on 21 January 2013.
The court noted the parties’ agreement as to the children’s time with the father pending interim hearing and subsequently consent orders were made in Chambers on 30 January 2013 to give effect to those orders.
The orders provided in summary:
a)that the children spend time with the father from 4.00pm to 8.00pm on 24 December 2012, from 8.00am to 1.00pm on 25 December 2012 and commencing 28 December 2012 each Friday and Saturday thereafter from 9.00am to 2.00pm save for 18 January 2013,
b)that the father’s time with the children be supervised by the paternal grandmother, the paternal grandfather or the paternal aunt,
c)that otherwise the parties be restrained from denigrating each other, discussing the proceedings or any issue in the proceedings in the presence or hearing of the children, that the father have telephone communication with the children each Monday and Wednesday between 7.00pm and 7.30pm and that changeovers for the purposes of the children’s time with the father be facilitated at the McDonald’s Family Restaurant at [D].
The matter was listed for interim hearing on 1 February 2013 and as a consequence of a preliminary evidentiary issue the matter was adjourned for interim hearing to 27 February 2013 at 11.30am.
On 27 February 2013 the matter proceeded to interim hearing and judgement was reserved. On that date the court made orders for the appointment of an Independent Children’s Lawyer and proceedings were adjourned to 24 April 2013 so as to facilitate the intervention of the ICL.
Background
The applicant mother was born [in] 1973 and is currently aged 39 years of age. The respondent father was born [in] 1975 is currently 37 years of age.
The parties commenced a relationship in early 1997 and were married [in] 2001. The parties separated on 1 October 2010. Following separation the mother obtained comfortable three-bedroom rental accommodation at [omitted]. The children have their own bedrooms.
Property orders provide for the father to acquire the mother’s interest in the former matrimonial home in consideration of a payment to her in the sum of $107,000. In default of that payment the home is to be sold.
The subject children are the children of their relationship. The child [X] is currently in Year 5 at [M] School. She is progressing satisfactorily at school. The mother asserts that the child can be defiant, needs firm boundaries and has exhibited impulsive behaviour and anger outbursts. The youngest child [Y] is presently in Year 4 at [M] School and has some educational issues in relation to reading.
The mother asserts that early on in the relationship with the father she observed worrying control tendencies in the father’s behaviour and issues as to the father’s anger. The mother asserts that the relationship between her and the father was verbally and emotionally abusive and that the father had been sexually violent towards her. She considered his behaviour to be extremely emotionally manipulative as he would seek to control all aspects of her life.
She asserts that often the father exhibited these behaviours in the presence of the children particularly in circumstances where he used foul and abusive language to the mother.
The mother further asserts that during the relationship the father was violent towards the children in that he would berate and belittle them, call them names and would shout and scream directly in their face if he was angry. The mother asserts that in June 2011 the child [X] informed her that the father had called her a “bitch” and “dog”.
The mother further asserts that the father’s behaviour escalated when he consumed alcohol to excess.
The mother says that she remains extremely intimidated by the father and she has received counselling to help deal with the domestic violence in the relationship and her ongoing anxiety in relation to the father’s behaviour.
The mother says that during the relationship she was the primary carer for the children. She worked full-time until the birth of the oldest child, had six months maternity leave and then return to work four days per week. She continued this employment until shortly before the birth of the second child in 2003.
The mother says that the father worked six or seven days per week as a [omitted] on rotating shifts either 6.00am to 6.00pm or 6.00pm to 6.00am.
In early 2006 after a period in England as a family the father returned to Australia, leaving the mother and children residing with her parents in the United Kingdom. Upon returning to Australia the father commenced his own business as a part-time [omitted].
The mother and children returned to Australia in September 2006. At this time the mother says the children were apprehensive about the father and very clingy with her. The mother resumed part-time employment three days per week and arranged for childcare for the children with her friend.
In January 2007 the children commenced full-time preschool and the mother secured full-time employment. The father’s business was not sufficient to financially support the household and it was necessary for the mother to work on a full-time basis.
In 2008 the oldest child commenced school and in 2009 the youngest child commenced school with both children attending the [M] School. The father to some extent assisted the mother in the drop off and pickups from school and after-school care until the mother returned from her employment.
Following separation the parties remained under the one roof for about two months. The father imposed on the mother a shared care routine and would not allow the mother to do anything with the children when it was to be his week with the children. The mother sought an arrangement that the children live with her and build up the children’s time with the father as their confidence with him developed.
During the period of separation under one roof the parties’ relationship remained conflictual and the mother asserts the father’s behaviour continued to be controlling and abusive.
In November 2010 the father refused ongoing participation in mediation at Unifam, insisting that there be a week about arrangement with the children.
The mother more recently has observed disturbing signs in relation to the children’s behaviour. She asserts that the child [X] is expressing a wish not to spend time with the father and that the youngest child has become withdrawn and tearful as his time with his father approaches. The children have informed the mother that the father users derogatory and offensive language in their presence in relation to the mother.
Regrettably the father has refused to facilitate the children seeing the school counsellor or having counselling at Relationships Australia as suggested by the mother in early 2012.
From early 2012 the children have expressed their concern to the mother as to the father’s behaviour when they are in his care, variously asserting that he was crying, crashing into walls, swearing at them and refusing to cook them dinner. The oldest child has said that the father acts strangely and is scaring them.
On Saturday 8 December 2012 the eldest child telephoned the mother informing the mother that the father was scaring her, shouting and swearing. The child insisted that the mother collect her. The mother informed the child to walk to a nearby friend’s home and about
30 minutes later that friend returned the child to the mother. [X] informed her mother that the father had put his hands on the youngest child’s arm shaking him with the child crying.
The mother expresses a serious concern as to the welfare of the children when they are in the father’s care.
The mother’s assertions as to the father’s behaviour during cohabitation are supported by the observations of her mother Ms B during the period that the parties resided in the United Kingdom and during periods that the maternal grandmother has spent in Australia visiting the mother and the children.
The mother’s assertions are further supported by the evidence of Mr B as to his observations of the children when visiting the mother in June 2011 and December 2012. Again the mother’s assertions as to the father’s behaviour are also supported by the evidence of Ms G, a friend of the mother, in her affidavit filed on 30 January 2013.
The father for his part asserts a substantial and significant involvement in the lives of the children. He was able to be available to some extent by reason of being self-employed.
However he makes no concession as to the matters alleged by the mother and indeed, reading his affidavit he would have the court accept that there were no issues in terms of his behaviour, his emotional control of his anger and of the mother and of his behaviour as alleged by the mother in relation to children.
The Family Consultant’s Memorandum
The parties and the children attended a child inclusive conference in with the family consultant on 21 January 2013.
The family consultant in relation to family safety factors observes that the mother reported that the father was controlling and emotionally abusive towards her during their relationship and that the father denied these allegations. The mother further alleged that the father is emotionally abusive towards the children, swearing at the children and calling her names in the presence of the children, allegations that the father denied.
On interview the children express concerns about being “fair” towards their parents. The eldest child clearly identified closely with the mother and identified having fun with the father. The child repeated to the family consultant her concern in relation to the father’s behaviour in December 2012 resulting in her being returned to the mother’s home by her mother’s friend. The child repeated that the father said to the children “fuck off” and that she had called her mother feeling scared. She said that she wanted to leave with her brother so that they were all safe from her father who she believed was being scary. The child confirmed to the family consultant that the father says negative comments about her, her brother and her mother, for example calling her brother “a fucking retard”.
[X] said that her time with the father had improved since that time had been decreased to 2 periods of five hours twice a week. She says that although she misses her father she feels more positive that the time will go well with him and she worries less about her father saying or doing something negative. The child would like to extend the hours with her father but did not want overnight time. The child informed the family consultant that she was a bit angry with her father for his alleged past behaviours. The child indicated that she would speak to the counsellor Ms W as to her feelings and her ability to differentiate between her priorities and those of her parents.
The youngest child [Y] expressed a feeling of pervasive sadness in relation to his parent’s separation. He expressed his love for both his parents but the wish that they would be able to communicate better. He clearly has a closer relationship with his mother than his father. He informed of the family consultant that he has a good time with his father sometimes but has experienced negative times with his father including his father saying mean things to him, getting angry with him and saying negative things about his mother.
The child said that he missed his mum while living in a week about parenting arrangement. He worried about spending time with his father as he thought that his father would be mean to him and he does not wish to return to an equal time parenting arrangement. [Y] does not want to spend more time with his father as he believes that the time since December has been occurring more positively and that more time would mean a likely return to his father’s negative behaviours.
[Y] expressed concerns that his older sister has said negative things to him that reflect things that have been said to him by his father.
The family consultant in discussing with the father the incident in December 2012 assessed that the father’s account of what happened lacked any emotional insight, was vague and the event was difficult to understand from his account. The father appeared largely unaware of the children’s emotional well-being.
The father, says the family consultant, denied allegations as to his behaviour and was teary at what he perceives he has lost in relation to time with and his relationship with the children.
The family consultant noted her concern that the children are reporting behaviour by the father that he is denying. The consultant observes that were the behaviours to have occurred as alleged the children were at risk of further inappropriate behaviour which in the longer term is likely to have a detrimental affect on their overall development.
The consultant was concerned that the father had not acknowledged nor taken responsibility for his actions nor sought assistance as to such behaviour in the future.
The family consultant noted the parents’ perceptions as to the parental relationship, with the mother reporting ongoing feelings of intimidation and control and the father reporting the relationship as civil although appearing to have minimal to no communication between them.
The family consultant expressed the view that each child was likely to benefit from ongoing counselling and when appropriate as assessed by the counsellor the father becoming engaged in counselling.
The consultant noted several contraindications in relation to a shared parenting arrangement including inadequate parental relationship, the youngest child’s vulnerabilities, recent allegations regarding the father which are unresolved and the children’s reluctance to return to an equal time parenting arrangement.
The court also received into evidence files from the children’s counsellor Ms W and the father’s counselling records from Ms P.
On 22 March 2011 Ms P noted that in February 2011 the father had contacted her to arrange counselling. In particular he was keen to address anger issues. Ms P said that in her opinion the father was taking his therapy seriously and had made a personal commitment to continue in order to gain skills to identify and express not only anger but also other emotions appropriately.
The Mother’s Proposal
During the hearing the mother provided to the court a minute of proposed interim orders sought by her. That document was admitted into evidence as exhibit H.
Relevantly the mother’s proposal in summary was:
a)that the children live with her,
b)that the father enrol in and complete an anger management course,
c)that the children spend supervised time with the father each alternate Saturday from 9.00am to 4.00pm and each alternate Sunday from 9.00am to 4.00pm and that for the purposes of such time the children be supervised by the paternal grandmother or the paternal aunt Ms N,
d)that changeovers be effected at the McDonald’s Family Restaurant at [D],
e)that the father’s time with the children be suspended on Mother’s Day, in 2013 from 12.00pm Easter Sunday until 4.00pm Easter Monday,
f)that the father have telephone communication with the children each Monday and Wednesday between 7.00pm and 7.30pm,
g)that the father be restrained from consuming alcohol for 24 hours before and during spending time with the children,
h)that the be a mutual non-denigration order,
i)that the parties be restrained from discussing the proceedings with or in the presence or hearing of the children,
j)that they keep each other informed as to any medical circumstances relating to the children,
k)that they use a communication book,
l)that the mother be permitted to travel to the United Kingdom from 23 September 2013 until 19 October 2013 with the children and that the children’s time with the father be suspended during such period,
m)that the mother and father do all things necessary to obtain an Australian passport for the children to facilitate travel and for this purpose the father provide to the mother originals of the children’s Australian citizenship papers and birth certificates, that the mother pay for the cost of obtaining the passports for the children and that such passports remain in the mother’s possession.
During the interim hearing the father provided to the court a minute of orders sought by him. The ultimate orders sought at interim hearing by the father provided in summary for the children to spend time with the father:
i)each alternate weekend from Thursday after school until before school the following Monday and in each other week from Thursday after school until before school on Friday,
ii)on Father’s Day weekend from 3.00pm Saturday until the commencement of school on Monday,
iii)from 2.00pm on Christmas Eve until 2.00pm on Christmas Day,
iv)for one half of school holiday periods,
v)at other times as agreed in writing between the parties
Otherwise the children were to live with the mother with changeovers effected at school or otherwise at the McDonald’s Family Restaurant at [D]
The Nature of Interim Proceedings
In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The Law
The relevant principles in relation to parenting and interim proceedings are well settled: Goode and Goode [2006] FamCA 1346.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s.(2)) and additional
(sub-s.(3)) considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a. there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)],
b. in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].
c. if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]
If the presumption in s.61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s.65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in s.61DA to interim proceedings at [56], the Full Court said:
“In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court in Goode and Goode provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v. GRR [2010] HCA 4 affirmed the legislative pathway
This included:
“(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);”
In Marvel the Full Court further observed at [106]-[107] in relation to the need to consider whether the presumption in 61DA applies in interim proceedings:
“……. we are satisfied the legislation required his Honour to turn his mind to whether or not the presumption applied, or whether under s 61DA(3) he should not determine that issue. That he did not do.
We have already alluded to the fact that the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates Court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.
Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced.
However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s61DA(3) to be applied.”
The Presumption
The court is not satisfied that in all circumstances of this matter the presumption should apply. As set out above in this the court’s reasons for judgment there are reasonable grounds to believe that the father has engaged in the abuse of the children or domestic violence.
In that circumstances the orders to be made by the court fall to be determined by reason of a consideration of the best interest considerations set out in s.60CC.
Best Interests
As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the court turns to look at the best interests considerations set out in s.60CC it should firstly consider the additional considerations:
The Additional Considerations
Section 60CC(3):
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 views of the children had been set out comprehensively in the family consultant’s memorandum. The circumstances in which those views are expressed and the present state of the children's relationship with the father causes the court to give considerable weight to the views of the children. This factor favours the mother's case.
b)the nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child);
The court is satisfied that the children have a primary and secure attachment to the mother who represents to them their primary carer. The children's relationship with the father is overshadowed by his anger and emotional issues and the children's apprehension and fear at times when they are with him. The children in this context have wishes that facilitate their relationship with the father being somewhat limited. This factor also favours the mother's case
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child;
There is no doubt that in the context of their respective roles within the household, that the father was the full-time primary income earner and the mother was working part-time and being the primary carer of the children, that the parties have fulfilled their obligations in this regard.
However a consideration of this factor must involve a consideration of the overarching negative impact of the father’s anger and emotional issues have had on his ability to properly fulfil his obligations in this regard having regard to the best interests of the children. A consideration of this factor also favours the mother's case.
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Both parties have fulfilled their obligations in this regard save for what may be regarded as the father’s somewhat controlling relationship in terms of the family finances. The court does not consider this to be a relevant factor of any weight.
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children until final separation of course remained in the same household as the mother and father, thereafter the mother asserts that the father against her wishes unilaterally imposed a shared care arrangement in relation to the children.
Following interim orders made on 19 December 2012 the children have had more limited time with their father in circumstances which the children say have been more comfortable for them having regard to their concerns as to the father’s emotional behaviour and their apprehension as to same.
The court considers that it is appropriate to continue the present arrangements for the children. Such a continuation will not adversely impact on the children and indeed will allow the children to continue their relationship with their father and the paternal family in circumstances which they find to be more protective of their concerns.
This factor favours the orders sought by the mother.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live in relatively close proximity and this factor has little relevance in the context of this interim application.
f)the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The court is satisfied that the mother has an appropriate capacity in this regard.
However as to the father for reasons set out above the court has significant reservation as to his capacity to meet the emotional needs of the children. His own emotional circumstance appears to be fragile and he clearly has difficulty in controlling same. This continues to put the children at some risk of exposure to the father’s anger and other inappropriate emotional responses.
In terms of the youngest child at least on a preliminary basis the court has some concerns as to the father's ability to meet that child’s intellectual needs. The father has belittled the child to his face, to his sister and to the mother.
This factor is of some concern to the court and clearly favours the mother’s proposal.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
This factor is relevant only as to the present ages of the children who are now 10 and 9. Both children have been able to express their views in a most capable fashion to the family consultant and in this regard are they reflect probably a maturity beyond their years.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)the likely impact any proposed parenting order under this Part will have on that right;
This factor is of no relevance.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
For the reasons set out above the court is satisfied that the mother has demonstrated an appropriate attitude and responsibility in this regard.
On the other hand the father has demonstrated as referred to above little insight into his own anger and emotional issues. He has demonstrated little reflective capacity to consider the needs of his children in the context of the difficult relationship between himself and the mother and his own difficult relationship with the children as a consequence of his emotional circumstances.
This factor also favours the mother’s proposal.
j)any family violence involving the child or a member of the child's family;
Family violence is now more widely defined by reason of the provisions of s.4AB of the Act.
The father’s behaviour as alleged by the mother and as alleged in particular by the children comfortably falls within the expanded concept of family violence for the purposes of domestic relationships.
Whilst the court must be reserved in making factual findings in the context of interim hearings the court is comfortably satisfied that there is a strong inference that there has been a significant element of family violence within the household of the mother and father and indeed post separation, such violence being as a consequence of the father’s behaviour in relation to the mother and the children.
Clearly the precise nature and extent of this violence will await a more full determination if required at a final hearing.
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
This is not a relevant factor in the context of this matter.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings and the court is unable to give consideration to this factor as being relevant to the court’s determination.
m)any other fact or circumstance that the court thinks is relevant.
The court does not consider there is any other relevant fact or circumstance.
The Primary Considerations: s.60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).
s.60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The nature of the relationships between the children and the father and mother has been referred to above in this the court’s reasons for judgement.
Clearly there are concerns as to the nature of the father’s relationship with the children and whether in the context of his emotional clouding that relationship should be in a circumstance where the children spend substantial and significant time with the father or more limited time that provides to the children a protective consideration and at present appears to meet their needs in terms of having a relationship with their father that is valuable to them.
It is important to the court to fashion orders that facilitates the children being satisfied that as best as can possibly be managed they will not be exposed to the father’s anger and emotional outbursts.
Such a relationship clearly is in the best interests of the children and in the present context and valuable to them in maintaining an appropriate relationship with their father. This consideration favours the mother’s proposal.
s.60CC(2)(b) – need to protect
The court’s consideration as to the necessity to frame orders that protect the children has been referred to variously above. The court will not repeat same in the context of a consideration of this important factor, save to say that in the context of this relationship it is a factor of significant weight and by reason of recent amendments to the legislation indeed is to be afforded greater weight than a consideration of the question of the children's meaningful relationship with the father.
A consideration of these protective concerns favours the mother’s proposal.
Having regard to a consideration of the best interests factors referred to above and the fact that the court is required to make orders where the best interests of the children are the paramount consideration in all the circumstances, the court considers that interim orders substantially in terms of those sought by the mother are appropriate and in the best interests of these children.
Otherwise, the court is not persuaded that it is appropriate for the mother and children to travel overseas to the United Kingdom for an extended period prior to final hearing of this matter which is likely to be within the next six months. The mother’s evidence is that her parents had been able to travel to Australia from time to time and more recently in January 2013 to spend time with the mother and the children.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 27/3/2013
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