Arunya and Dobson

[2010] FamCA 155

FAMILY COURT OF AUSTRALIA

ARUNYA & DOBSON [2010] FamCA 155

FAMILY LAW – CHILDREN – Appeal from a court of summary jurisdiction – Interim application – Allegations of domestic violence, threats of self-harm and alcohol abuse – With whom the children should primarily live on an interim basis – Where the children should go to school on an interim basis – HELD – Appeal from court of summary jurisdiction granted on the grounds – Orders of the learned magistrate set aside – Children to live primarily with their mother on an interim basis – Matter remitted to the Deputy Chief Justice for first day of the Less Adversarial Trial

Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(3), 61DA(1), 61DA(3), 96(1), 96(4)

APPLICANT: Ms Arunya

RESPONDENT: Mr Dobson

FILE NUMBER: CAC 3 of 2010

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 15 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Browne

SOLICITOR FOR THE APPLICANT: Jeanine Lloyd & Associates

COUNSEL FOR THE RESPONDENT: Mr Stagg

SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

Orders

IT IS ORDERED THAT:

1. The appeal from Magistrate Bone in relation to final orders made on 21 December 2009 is allowed.

2. Until further order the children, L, born … July 2001, A, born … September 2003, and P, born … April 2006, will live with their mother Ms Arunya.  This order will commence from Saturday 20 February 2010 at 9am.

3. The children will spend time with their father on every second weekend (commencing 27 February 2010) commencing at 9am on the Saturday at the B Police Station, where their father will collect them and the children will be delivered by their mother at 6pm at the Y Police Station on the following Sunday. 

4. In addition, the children will spend the first half of the school holidays with their father commencing on the first Saturday after the last day on which any of them is obliged to attend school and concluding on the day in the middle of the school holiday.  In that case the children will be collected by their father at 9am on the Saturday at the beginning of the school holidays and picked up by their mother at the mid-point during the school holidays as may be agreed between the parents. 

5. The matter is otherwise remitted to a Less Adversarial Trial for determination.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:

1. a.     The mother will have sole parental responsibility in relation to the children.  This includes the determination of what school the children will attend.

   b.Notwithstanding the last mentioned order the mother will consult with the father about any principal matters relating to the children.

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

IN THE FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 3 of 2010

MS ARUNYA

Applicant

And

MR DOBSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a court of summary jurisdiction[1] and an interim application relating to where the three children of the parties will live pending the finalisation of the formal proceedings before the Court. 

   [1] Family Law Act 1975 (Cth) s 96(1) & s 96(4) refers.

2. The three children are L, born in July 2001; A, born in September 2003; and P, born in April 2005. 

Relevant background

1. Without detailing all the past proceedings between the parties, as a result of an application to the Bega Local Court, Magistrate Bone made an order which placed the children primarily in their mother's care on 17 August 2009.  When that matter came on for final hearing, the mother was not represented before the Local Court when the matter was called on.  I accept from what Mr Stagg tells me from his principal instructors that it was drawn to the attention of the learned magistrate that the mother was not present and was seeking different orders, but the learned magistrate nevertheless made the orders appealed from.  This effectively meant that the children would live primarily with their father (a reversal of the orders made by the learned magistrate in August 2009).  The children came to live with their father pursuant to this order about a month ago. 

Submissions of the parties

1. The primary submissions from each of the parties in relation to this can be put in fairly short compass.  On behalf of the mother, it is said that the father has not demonstrated an adequate ability to supervise the children.  It is asserted that the children's hygiene suffers when they are with their father, and the mother is willing and able to look after the children, however, nothing is said about her ability to do so. 

2. Contrary to the mother’s assertion, Mr Stagg put to the Court that since the children have now been with their father for a month, the circumstances appear to be stable and the children are well‑settled.  They have commenced attending the Y School and, inferentially, if there were to be a change in the arrangements about where they primarily live, they would need to change schools and move to a new school. 

3. Mr Stagg states there has never been a previously expressed concern about the care that the children are able to receive from their father from the mother.  Mr Stagg also suggests that the father's evidence about the routine he spends with the children is an oasis of clarity and recollection and demonstrates his ability properly to look after the children. 

The legislative pathway: the best interests of the child

1. It is important in a situation such as this to keep in perspective the way in which the Court is obliged to consider matters about the children as a result of the Family Law Act 1975 (Cth). The Act provides that the paramount consideration in the making of any parenting order is the children's best interests.[2]  The paramount consideration is not what the parents think is appropriate, not what they think is fair for them as parents, not what their parental rights are – but what is in the children’s best interests. 

   [2] Family Law Act 1975 (Cth) s 60CA.

2. The Court is obliged under s 60CC(1) of the Family Law Act 1975 (Cth) to take into account primary and additional considerations in determining the best interests of the child under.

3. This is an interim hearing and the evidence is necessarily a lot less detailed than it would be in a finalisation of the proceedings before the Court.  As such, that which might corroborate one party's version of facts or the other is not available to me today.  To some extent I have to rely upon what they have written both about the circumstances in which they lived together, the circumstances in which they parted company, the circumstances in which the children have grown up and each of their proposals about what might be the appropriate way in which they will grow up in the future. 

4. Within that context, I concede that I am not in a position to make final decisions about a number of important issues before this Court. For the reasons I give below, pursuant to s 96(4) of the Family Law Act 1975 (Cth), upon completion of these proceedings, I will begin the first day of a Less Adversarial Trial which will identify the matters that I require to have before me for a finalisation on a permanent basis so far as it can be permanent for children. We will start a program to ensure the matter can come before the Court to be finalised as soon as possible.

Primary and additional considerations

1. The first primary consideration that the Court must take into account is the benefit to the children in having a meaningful relationship with each of their parents.[3]  The parents agree that this is important for the children, although I suspect that it is a concession made under the flag of convenience rather than of conviction.  Each of the parents bears intense antipathy towards the other.  Each of them says that he or she is in fear of his or her life from the other.  It seems extraordinary that neither of them seems to be capable of recognising that mutual fear, mutual concern and mutual distrust are unlikely to be of much benefit to the children. 

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

2. Nevertheless, it seems to be the case that each of the parents concedes that, whatever may be the future, the children should spend time with the other parent.  It does seem, however, to be impossible to contemplate that the parties will be parents who will be able to work together for the benefit of their children, short‑term or long term. 

3. I give as an instance of this the fact that in the last few days, the two younger children were involved in an accident in which they were left apparently able to get into a car.  The children got into the car, removed the handbrake, the car reversed down an incline across the road, smashed into another car and a house injuring one of the children.  This was not a circumstance in which the father felt he should share this information with the mother and, in fact, rejected any inquiry from her when it was made. 

4. I find that extraordinary in the extreme.  This shows that there is an inability on the part of the father, (an inability which may well be shared by the mother,) to consult and to discuss and to have any sort of appropriate conversation about what is in the best interest of the children. 

5. Accordingly, in my opinion, there is no basis upon which I could possibly determine on an interim basis there should be equal shared parental responsibility.  The presumption to this effect under the Family Law Act 1975 (Cth) is therefore rebutted.[4]  I may change that view for the final hearing, but I can see no basis for it at this point. 

   [4] Family Law Act 1975 (Cth) s 61DA(1) & s 61DA(3) refers.

6. The second primary consideration is the need to protect the children from physical, or psychological harm, or from being subjected to, or exposed to abuse, neglect or family violence.[5] 

   [5] Family Law Act 1975 (Cth) s 60CC(2)(b).

7. If I were to accede to the request of the parties that all handovers take place at various police stations, the chances of their being any extreme violence are relatively remote.  I accept, in part, the father's comment in the witness box, it is better that it happens at a police station that they witness violence.  I suppose that is the ultimate in pragmatism, albeit at the lowest common level. 

8. I am concerned that the children have been exposed to violence.  I am concerned that the children were exposed to psychological and verbal abuse between the parents on this last weekend past after the parents had been to this Court and before they were due to return to this Court. 

9. If I am to believe the mother, the father unilaterally, engaged in foul language clearly in the presence of the children in response to some murmured comment by the mother to her new partner.  The father says he was prompted to engage in foul language because of an unsolicited racial slur by the mother against him.  If either used the language complained of in the presence of the children, it shows a deep and abiding inability to understand what the responsibilities of parenthood are.[6] 

   [6] Family Law Act 1975 (Cth) s 60CC(3)(i).

10. I am unable, at this point, to come to any satisfactory conclusion about whether or not each offended in this regard, but it is quite clear that both have and will continue to do so if they are exposed to each other in unsupervised circumstances.  So far as the physical safety of the children is concerned, notwithstanding the submission from Mr Stagg that it happens in every family that children get into cars, take handbrakes off and have crashes.  I do not think this is appropriate and, certainly, again, in circumstances where you would expect both parents to be on their very best behaviour, and subject to the scrutiny of the Court.  The father and those assisting him, including his mother, showed an inability to look after a six‑year‑old and a four‑year‑old.  They failed to stop them from getting into a motor car. The consequences of their doing so were fortunately only a bad bump on the head rather than the children being wiped out by a passing truck that might happen to have been going past at the time.

11. This leaves me with an unsatisfactory and uneasy feeling about whether the father, at least, is capable of supervising the children adequately.  This was not assisted by the fact that he said that he was available for them “24/7” and immediately gave instances which made it clear that he did not mean that he would personally be available for the children “24/7.” I would not expect him to be available “24/7”; no parent ever is.  But the fact that he wanted to, in some respects, “big note” himself by saying he would be available “24/7”, and then immediately conceding that he would not be, is indicative of wanting to impress without necessarily having the basis with which to achieve it. 

12. I do not believe on the evidence before me, and I emphasise this is an interim hearing, that the children are likely to be in danger of any physical harm if they are with either parent during this period from any direct action of violence towards one parent or the other.  However, I am deeply concerned about the way in which the evidence unfolded about the violence that has been outlined at some length by the mother in an earlier affidavit filed in proceedings before the Bega Local Court.  I am also particularly concerned that at no point during the course of his evidence did the father take the opportunity, not even after his attention was specifically drawn to the affidavit and its litany of complaints, to rebut in detail the matters that are raised in that affidavit. 

13. There are matters in the affidavit which are of a general and summary nature and not really capable of being relied upon at this point, although many of the matters involved are capable of some corroboration from external sources.  It is a matter that the Court will deal with in due course.  In practical terms, I am unsatisfied at this stage that the allegations that the mother makes have been finally and satisfactorily proved. I am even more unsatisfied that the father has, notwithstanding what I regard as an unqualified invitation to do something about it, adequately rebutted or denied or attempted to refute most of the allegations that were made.  Accordingly, at this point, I have deep concerns about the violence between the parties and, more particularly, violence substantially generated by the father. 

14. In this regard, I note that the only incident of violence which he is prepared to concede is one involving where he says he was – I quote his words, not those of the affidavit – he was "kicked in the nuts."  He says that this caused him in self‑defence to grapple with the wife and pull her to the floor.  The incident as described by the wife, of course, is entirely different, and what is fascinating about it is the father says he was so “blind drunk” he cannot remember the details in any event.  If he cannot remember the details, he certainly cannot remember whether it was in self‑defence or otherwise. 

15. The father's recollection about his drinking presents some difficulty to me.  The father had given Mr Stagg clear instructions about the fact that he had not drunk alcohol in the past year or at least in this calendar year.  That was a question put to the mother in her cross‑examination.  During the course of his evidence, the father revealed, (to the apparent surprise of his counsel,) that the last time he had a drink was two days ago and that the last time that he got really drunk was last Christmas 2009.  He continued to drink, (but not very much, a couple of drinks) this he defined as being a “six pack” which, in his opinion, was really not much of a drink at all. 

16. I am deeply concerned, given the history of the matter that there is a problem with alcohol which is far from being addressed by the father.  The father has attended three personal development courses.  I have a certificate from one.[7]  The father’s knowledge of what he learnt during the course that he attended is superficial to the point of being non‑existent.  I do not believe that, if he attended that course and did so in an appropriate and functioning way, he would have carried on in the way he did.  He is far from identifying, as the program was intended to do, the issues relating to abuse.  These he defined as being “no drinking, no smoking, no partying.”  It does not seem that this is a matter which has sunk in with him, at least below the “six‑pack” level. 

    [7] Exhibit ‘F1’: Certificate from the Community Offender Services [Y] District Office that [the father] has participated and completed a 40 hour “Domestic Abuse Program.”

17. One of the issues I will need to be satisfied about in the final hearing, is whether the father does have a problem with alcohol to the extent that it may cause a serious problem with the children. 

18. So far as the mother is concerned, if the father is to be believed, she is a violent person who has constantly threatened him with knives, or threatened to harm herself.  These are serious matters and are matters which will need to be resolved in due course.  It is not suggested by the father, it seems, from any material that I can recall, that she would be likely to harm the children.  It is also not suggested that she would be incapable of knowing whether or not she was going to harm the children.  I am not certain that the same applies to the father. 

19. If I look at the other matters I am to take into account; it seems that the children have a reasonably happy time with each of their parents.  While they are of an age where their views are not such as I could place significant reliance upon them,[8] it is important that I should at least take account of the fact that the children seem to want to spend time with each of their parents. 

    [8] Family Law Act 1975 (Cth) s 60CC(3)(a) refers.

20. I also take into account that the children seem to have a loving relationship with each of their parents.[9]  I am unhappy about the so‑called allegation, which the father seem to rely upon as some sort of excuse for his failure adequately to supervise the children, that the mother told them to “muck up” in their father's company.  The correlation between the allegation and the events is non‑existent.  The fact that the mother did or did not say that is a matter which the Court will explore in due course.  If in fact she has been telling that to the children, it is a serious criticism of her responsibility as a parent.  It places upon the children a burden that no children of this age should ever be faced with.  On the other hand, if I were to find that she did not make that comment, and that the children have not said that to their father, their father's purported reliance upon it for the excuse for his behaviour on this occasion is despicable and will be visited with appropriate consequences. 

    [9] Family Law Act 1975 (Cth) s 60CC(3)(b)(i) refers.

21. I cannot believe that either of the parents is going to be increasingly willing or have much ability to support the relationship that each child has with the other.[10]  It is clear that each of them feels that they should put their hand up and say that the children should spend time with each of the parents, but neither of them is really in favour of that proposition.  I think that it will happen while court orders exist.  I think it is unlikely that court orders will prevent further litigation between the parties.[11]  I do not know how many times the parties have been to court for Domestic Violence Orders, Apprehended Violence Orders or other sorts of orders, but I suspect it is more than the ages of the children combined.  Whatever it is, it is not going to do much good for the children in the future. 

    [10] Family Law Act 1975 (Cth) s 60CC(3)(c) refers.

    [11] Family Law Act 1975 (Cth) s 60CC(3)(l) refers.

1. If the children were to change school on an interim basis, which is the proposition that is currently before me by the mother, it would mean that they would literally change schools having been there only for three weeks.  This is undesirable, but it is not a factor which would ultimately be the only determining factor as to whether the children should return to live primarily with their mother or stay with their father.  I note, however, it is a factor.[12] 

   [12] Family Law Act 1975 (Cth) s 60CC(3)(m) refers.

2. There are difficulties with the children in spending time with each of their parents.[13]  The father does not drive, has never held a licence and is dependent upon others for his transport of the children.  That would seem to suggest to me that it is appropriate that he should be the one to pick up the children (with the assistance of his parents) from the mother if they are living with her, which would ensure that there was no possibility that anyone would be put to time expense and difficulty and potentially coming back to court if, in fact, he was unable to or, unwilling to see the children. 

   [13] Family Law Act 1975 (Cth) s 60CC(3)(e) refers.

3. I have at this point no satisfactory knowledge of the capacity of either parent properly to look after the children.[14]  The father says somewhat blithely that he is able to do part‑time work and that he is available for the children.  I have attempted to do a calculation (as he was talking) about the hours he actually spends at work. They were very few indeed.  I am not sure what the consequences of all that is and, whether or not, what he gets from Centrelink is the supplement to make his life easier for looking after them. But in practical terms the children need a parent who is prepared to work and provide for them in a role model as much as anything else. 

   [14] Family Law Act 1975 (Cth) s 60CC(3)(f)(i) refers.

4. On the other hand, the mother's hours of work she glides over and says that “it's fine.”  “I am here for them part of the time, and then my partner and other people look after them.”  The supervision of these children and their ability to relate to the people with whom they are being left is important for me to know on a final basis.  I am not satisfied that either parent at the moment has given enough thought and attention to what will happen to the children particularly in their formative years. 

5. It would appear, but I do not know, except through some of the material put to me that the children's father is of Aboriginal descent.  I am obliged under the Family Law Act 1975 (Cth) to consider the children's right to enjoy their Aboriginal culture and the likely impact of any parenting order on their culture.[15]  No one has put anything before me about that today and I do not necessarily expect that I would have had it before me on an interim basis.  I would certainly be concerned in any final hearing to ensure that the children have the appropriate exposure to their culture and heritage and are able to pursue it in an appropriate way. 

   [15] Family Law Act 1975 (Cth) s 60CC(3)(h).

6. I have dealt with issues of family violence[16] and with the fact that there are already orders in existence between the parties which prevent their contact with each other.

   [16] Family Law Act 1975 (Cth) s 60CC(3)(j) refers.

Future Directions & Conclusion

1. I want to turn briefly to the nature of the orders that are before the court.  The original orders that were made left the children living primarily with their mother.  As Mr Stagg seemed to suggest, a month is a long time.  Well, if a month is a long time, then five months is a longer time.  In circumstances where the children were living with their mother over that period, it seems to me that it would have required significant action on the part of the learned magistrate who heard the case to decide on a change pending a final hearing or as final orders.  I do not know what his Worship had in mind when he made the orders he did, but it seems clear to me that there was no proper investigation of the circumstances between the parties and it is inappropriate that that order should have been made at that point interfering with what was then a reasonably long‑standing arrangement. 

2. In my opinion, it is appropriate that I should, if I am left with two evenly balanced situations, restore what was the status quo before the orders made earlier this year.  I do so without coming to any conclusion about where the children should finally live.  I do so noting that there is a serious question involved in the disruption of the children's lives by being moved from school after a relatively short time there.  I recognise, however, that at least two of the children have been attending the school to which they will be transferred during the time they were with their mother.  I am concerned after listening to what evidence I had today and from the affidavits that there are a number of matters that need to be sorted out.  It seems to me the parties are going to be dependent upon their lawyers to make sure that the appropriate steps are taken. 

3. I make these comments and I make them only by way of guidance.  It is difficult to envisage how the children are going to get adequate assistance, particularly in the case of L where he may need additional assistance because of his hearing problems and his learning difficulties, (which are corroborated in the report he received from his school last year,[17]) with his father who is unable to read, at least, other than simple words.  This is not in anyway a criticism of the father.  The fact that he cannot read is a fact.  But the fact that he cannot read is something which will inhibit or prevent him from being able to assist the children as much as he might in their homework and in their education. 

   [17] Exhibit ‘M1.’

4. More detail about that issue and the facilities available to the father to help him to overcome what is a disadvantage for him with the children is something that will have to be resolved in the final hearing.  In the meantime, it seems clear that if I had to choose on that basis alone, the children would get more assistance from their mother than they will from their father.  Having said that, I note that her hours of work do not coincide with the time the children are normally doing their homework.  This is also a factor the mother will need to address when it comes to a final hearing. 

5. I am also concerned that neither of the parents, and in particular the father, seems capable of making any comment about the other without adding some criticism.  It is not going to help the children to grow up thinking that each of their parents hates the other. 

6. I do not expect either parent to particularly like each other.  It is clear that a lot of water that has passed under the bridge.  The father may well be right in saying that it is important that the relationship came to an end.  It was a poisonous relationship from all accounts which neither party seemed to derive any benefit from.  However, it is not the parties that this is all about, it is the children.  It is important for the children that they should at least understand that their parents love them enough that they can cooperate and can sort out important things such as whether they have been to hospital. This is to be compared to scoring points off each other about whether or not they were the one who gave them lice, or herpes, or anything else that is around the place.  I have no idea what sort of herpes L is afflicted with, or what the condition is, or where it was caused, but it is something that needs to be explored and explained in the proceedings before me in due course.  I am also interested in each party's version about what was done about L’s ears in the past.  The versions that I have had so far have been hardly satisfactory.  If it has been a condition that has existed for as long as it has, then I am astonished that there has not been some effort by the parties to get the thing sorted out before now. 

7. For those reasons, therefore, it seems to me that the children should, at least until the finalisation of the proceedings, live primarily with their mother.

8. Their mother is of the view that the children should spend every second weekend with their father.  It seems to me that that is a “common” position. 

9. It also seems to be agreed between the parents that the children should spend half the holidays with their father. 

10. If the mother's allegations were true, in all of the particulars, then it seems astonishing that she should be in favour of the children spending half of the school holidays with their father.  She however is a mother.  She is in a better position to be concerned about and to make a judgment about the children's safety than I am without all the appropriate evidence. 

11. Therefore, I will accede to the orders that both parents seek, which is that the children would spend half the school holidays with each of them.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  3 March 2010