Ashford and Ashford
[2015] FCCA 2701
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASHFORD & ASHFORD | [2015] FCCA 2701 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – whether children should remain living with father in remote rural location – whether children should return to live with mother in suburban Sydney – children’s views – poor communication – reasonable practicability. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA. |
| In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 |
| Applicant: | MS ASHFORD |
| Respondent: | MR ASHFORD |
| File Number: | SYC 2494 of 2014 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 27 & 28 August 2015 |
| Date of Last Submission: | 28 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | David H Cohen |
| Counsel for the Respondent: | Mr Wilson |
| Solicitors for the Respondent: | Friedlieb Byrne Solicitors |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
THE COURT ORDERS THAT
Save for these final Orders, all previous parenting Orders be discharged on and from 21 December 2015.
Parental Responsibility
Subject to paragraph 3 herein, the parties MS ASHFORD (“the mother”) and MR ASHFORD (“the father”) have shared parental responsibility for X born (omitted) 2000 (“X”) and Y born (omitted) 2003 (“Y”) (or collectively, “the children”) in relation to major long term issues.
The mother have sole parental responsibility for the children in relation to long term issues involving education and health.
For the purposes of paragraph 3 herein and subject to any emergency decisions being required, the mother:
(a)notify the father of any proposed decision and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b)take into consideration any views expressed by the father about the proposed decision before making a final decision.
Each party have responsibility for decisions concerning the day to day care, welfare and development of the children whilst the children are in that party’s care.
Live With
The children live with the mother.
Spend Time With
The children spend time with the father as follows:
(a)during the New South Wales school holiday periods at the end of Terms 1 and 3, for eight (8) consecutive nights commencing on the first Saturday of the school holiday period;
(b)during the New South Wales school holiday periods at the end of Term 2, for twelve (12) consecutive nights commencing on the first Saturday of the school holiday period;
(c)during the New South Wales Christmas school holidays:
(i)for the school holiday period commencing at the end of Term 4 in 2015, for fourteen (14) consecutive nights commencing on 3 January; and thereafter
(ii)where the school holiday period commences in a year ending in an even number (eg. 2016), for twenty-one (21) consecutive nights commencing on the second day after the last day of Term 4; and
(iii)where the school holiday period commences in a year ending in an odd number (eg. 2017), for twenty-one (21) consecutive nights commencing on 3 January; and
(iv)such other times as the mother and the father may agree to in writing.
For the purposes of paragraph 7 herein, unless otherwise agreed between the mother and the father in writing, changeovers occur as follows:
(a)the father make the necessary arrangements for the children to travel from Sydney to (omitted), such that the children arrive at (omitted) by the evening of their first night with the father;
(b)the father bear the costs of such travel from Sydney to (omitted);
(c)the father notify the mother of the children's travel arrangements in writing and not less than seven (7) days prior to the day of travel; and
(d)if the father arranges for the children to:
(i)travel by train, the mother ensure that the children arrive at (omitted) Station in plenty of time to catch the train on which they are to travel;
(ii)travel by air, the mother shall ensure that the children arrive at Sydney Airport at the appropriate terminal in plenty of time to catch the flight on which they are to travel; or
(iii)travel by car, the mother ensure that the children are ready to be collected from the mother's home at the time specified by the father in his written notice about the travel arrangements, and
(e)the mother make the necessary arrangements for the children to travel from (omitted) to Sydney, such that the children depart from (omitted) on the morning after their last evening with the father;
(f)the mother bear the costs of such travel from (omitted) to Sydney;
(g)the mother notify the father of the children's travel arrangements in writing and not less than seven (7) days prior to the day of travel; and
(h)if the mother arranges for the children to:
(i)travel by train, the father ensure that the children arrive at the bus/coach departure point in (omitted) in plenty of time to catch the bus/coach on which they are to travel from (omitted) to W.W., where they are to catch the train to Sydney;
(ii)travel by air, the father ensure that the children arrive at the airport terminal in plenty of time to catch the flight on which they are to travel; or
(iii)travel by car, the father ensure that the children are ready to be collected from the father's home or from (omitted) at the place specified and at the time specified by the mother in her written notice about the travel arrangements.
Communicate With
The mother and the father facilitate the children communicating with the father by telephone between 11:00am and 11:30am every Saturday that they are not already with him, with the father to call the children on a number nominated by the mother and the mother take all reasonable steps to ensure that the children are available and able to answer the father's call.
The mother and the father facilitate the children communicating with the mother by telephone between 11:00am and 11:30am every Saturday that they are not already with her, with the mother to call the children on a number nominated by the father and the father take all reasonable steps to ensure that the children are available and able to answer the mother's call.
The mother and the father ensure that the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.
Authorisations and Provision of Information
Health
The mother:
(a)provide the father with and keep him advised of the names and addresses of the children's treating doctors;
(b)inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to either of the children; and
(c)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the mother's receipt of the report.
Both the father and the mother be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and
(b)discuss the children's condition with such treating doctor or specialist medical consultant;
(c)however, such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
The mother ensure that the father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.
The father ensure that the mother is notified as soon as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they return to the mother's care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following the children's return to the mother's care.
Education
These Orders authorise any school which the children are attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.
Both the mother and the father be permitted to attend:
(a)any school event relating to either of the children to which parents are ordinarily invited; and
(b)any of the children's extracurricular activities.
Contact Details
The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
Restraints and Injunctions
The mother and the father each:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
Other Orders
The Independent Children’s Lawyer explain these Orders to the children and thereafter, their appointment be discharged.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Paragraphs 8 to 21 herein were made with the consent of the parties and the balance were made by the Court following a contested final hearing.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ashford & Ashford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2494 of 2014
| MS ASHFORD |
Applicant
And
| MR ASHFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant, MS ASHFORD (“the mother”) and the Respondent, MR ASHFORD (“the father”).
These proceedings concern the children of the parties’ marriage, X (“X”) born (omitted) 2000 and Y (“Y”) born (omitted) 2003 (collectively, “the children”).
The parties are in dispute in respect of a number of issues including parental responsibility, the live with and spend time with arrangements for the children and communication between the children and the parties. The details of the orders sought by each party are extracted later in these reasons.
At the final hearing each party was legally represented by counsel; the mother by Ms Carr, the father by Mr Wilson and Mr Ladopoulos appeared on behalf of the Independent Children’s Lawyer (“the ICL”).
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
Relationship history
Both parties and the ICL provided the Court with chronologies of relevant events in their case outlines.
The father was born on (omitted) 1964, and is currently 51 years of age. The mother was born on (omitted) 1966, and is currently 49 years of age.
The parties were married on (omitted) 1989. They have five children together; V, W, Z, X and Y. V, W and Z are aged 26, 21 and 20 years old respectively and thus are not subject to these proceedings. X is currently 15 years of age and Y, 12 years of age. The mother also has an adult son from another relationship, U, 28 years of age.
The parties separated on a final basis in July 2009, according to the mother and in December 2009, according to the father. They are not divorced.
The mother is currently in a relationship with ‘Mr G’,[1] who lives in the same townhouse complex where the mother resides. The mother works as an (occupation omitted) at (employer omitted). The parties’ adult children V and W live with the mother in (omitted), Sydney.
[1] Transcript, 27 August 2015, p.30; Family Report paragraphs 2, 11, 29, 38.
The father is not currently in a relationship and though is a (occupation omitted) by trade, he is not currently employed. The parties’ adult child Z and his partner, Ms T (and her two year old child from a previous relationship), reside with the father in (omitted), which is located in the (omitted) area in regional New South Wales. X and Y have been living with their father since December 2013.
Procedural history
These proceedings were commenced by the mother on 29 April 2014 when she filed her Initiating Application. The father filed his Response on 27 August 2014.
The matter first came before me in a duty list on 31 July 2014. On that date I made orders for the parties to attend a Child Inclusive Conference, the appointment of an Independent Children’s Lawyer, for the filing of responding material and adjourned the matter to 12 September 2014. I also made interim orders by consent for the children to communicate with the mother each Saturday at 10:00am via telephone.
On 12 September 2014 I made orders for the preparation of a family report and adjourned the matter to 19 December 2014. Several interim orders by consent were also made on that date, including orders for the children to live with the father and spend time with the mother during school holiday periods, for the children to communicate with the other parent when not otherwise in their care, a restraint upon the mother bringing the children in contact with Mr S (now her former partner), and a restraint on both parties from denigrating the other party and from discussing the proceedings with the children.
On 19 December 2014 I made orders for the family report to be released and adjourned the matter to 27 March 2015. I also made an order for the parties to be restrained from allowing any third party to discuss the proceedings with the children and showing the children Court documents.
On 27 March 2015 I set the matter down for final hearing for no longer than two days to commence on 13 October 2015. On that date I also made trial directions and made further interim consent orders for the children to spend time with the mother in the following school holiday period, for the children to communicate with the other parent when not otherwise in their care, for the father to ensure that the school in which the children attend forward the mother all relevant school reports and merit cards and relevant material in relation to academic and extra-curricular activities.
Due to the unavailability of the family consultant, the final hearing was moved forward to 27 and 28 August 2015.
The final hearing commenced on 27 August 2015 and concluded on 28 August 2015 at which time I reserved my judgment.
Proposals
The parties and the ICL each provided the Court with a minute of proposed orders.
During final submissions, the parties indicated their agreement to the following paragraphs of the ICL’s proposed minute:
·paragraphs 1, 2 (i.e. the retention of the current interim orders until 21 December 2015 with any final Orders to commence then);
·paragraph 5 (‘spend time with’ order: but parties agreed that it could be mutual noting that paragraph 5 assumes that the children are living with the mother – if the children are living with the father the order would apply as to the mother);
·paragraph 6 (changeovers/travel arrangements and costs) ultimately, the parties were able to agree – they will each organise and pay for the children to come into their respective care;
·paragraphs 7 to 9 (‘communication’ time – but the parties agreed that the time should be 11:00am to 11:30am);
·paragraph 10 (health/keeping the other party advised: but parties agreed that it could be mutual – effect depends on whether children are living with mother or not);
·paragraphs 11 to 13 (health/further related orders);
·paragraphs 14 and 15 (education/authorisations and attendances);
·paragraphs 16 and 17 (contact details); and
·paragraph 18 (restraints and injunctions).
As the parties used the ICL’s proposed minute as the baseline for their final proposals, I will discuss the balance of the ICL’s proposal first.
Independent Children’s Lawyer’s proposal
In relation to the competing ‘live with’ proposals, the ICL took the view that the children should return to live with the mother and spend the majority of the school term holidays and half the summer school holidays with the father.
During submissions Mr Ladopoulos proposed alternate positions in relation to parental responsibility.
The ICL sought that there be no order in relation to parental responsibility. However, there would be still be an onus upon the mother to notify the father of any proposed decision/s and to take into account his view before making the decision. The proposed order stated:
“That the mother:
(a) notify the father of any proposed decision relating to the long term care and welfare of the children X born (omitted) 2000 and Y born (omitted) 2003 ("the children")and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b) take into consideration any views expressed by the father about the proposed decision before making a final decision.”
Alternatively, Mr Ladopoulos proposed that the mother have sole parental responsibility regarding health and education and either there be an accompanying order (or not) for equal shared parental responsibility.
Mother’s proposal
The mother seeks that the children live with her and consequently, that she should have sole parental responsibility for them. She conceded under cross-examination that a consultation process with the father would be appropriate.
As stated, the parties eventually agreed to ‘mirror’ spend time provisions for the children to spend with the parent they do not ordinarily live with. The mother originally sought the children spend one day a month with the father however, again under cross-examination, she conceded that would be difficult to arrange. The mother proposes that the children communicate with the father each Saturday at 11:00am and other times should the children wish to do so.
Father’s Proposal
The father seeks the children remain living with him and that he have sole parental responsibility for them.
Regarding parental responsibility, the father’s main concern is being ‘cut out’ of decisions by the mother.
Issues
As the parties were ultimately able to reach agreement on a number of issues, the only issues for the Court to determine relate to:
·the allocation of parental responsibility; and
·which parent the children should primarily live with.
Evidence
Mother
The mother relied on the following documents at the final hearing:
·Amended Initiating Application filed 3 July 2015;
·her consolidated affidavit sworn 2 July 2015 and filed 3 July 2015; and
·her affidavit in reply sworn and filed 21 August 2015.
In reading the mother’s affidavit filed 21 August 2015, I have taken into account, for the purposes of weight, certain objections raised by the father’s counsel in relation to paragraphs 31, 32, 52 and 91.[2]
[2] Transcript, 27 August 2015, p.11.
The mother was generally well-spoken and emotionally controlled and appeared genuine. She was candid in answering questions and made concessions where appropriate, even against interest (for example, in her responses to being the victim of domestic violence perpetrated by her former partner, Mr S). I note that the mother was specifically cross-examined about the following:
·her relationship with her former partner and whether the children were exposed to family violence;
·the dog bite incident involving X;
·the bicycle accident when Y was hit by a car riding to school;
·her lack of response to the father’s ‘offer’ in early 2014 for her to spend time with the children (or ‘failing’ to make a counter-proposal); and
·her relationship with her neighbour, ‘Mr G’, and the lack of information about him and his apparent involvement in looking after the children and taking them to use his guns at a gun club.
Overall, I found the mother’s explanations reasonable and her answers child focussed. She clearly tolerated family violence by Mr S; that said, she was ultimately able to end her relationship with Mr S and I believe the mother when she says she would have responded differently with hindsight. The mother also gave evidence about her financial care of the children and the minimal financial support she gets from the father. However, the mother’s decision not to put ‘Mr G’ on affidavit, or otherwise call him as a witness, is problematic and raises some legitimate concerns (as expressed by the father through his counsel). Nevertheless, I note that neither the ICL nor the father sought any restraint about the children coming into contact with, or being left alone with, Mr G.
Father
The father relied on the following documents at the final hearing:
·Amended Response filed 15 July 2015; and
·his consolidated affidavit sworn 14 July 2015 and filed 15 July 2015.
The father presented as emotionally controlled and gruffly spoken. He is clearly a ‘straight talker’ (i.e. he tells it like he sees it). During his evidence the father confirmed that:
·the children, his son Z and Z’s partner (Ms T) and his partner’s two year old all reside with him in a three bedroom ‘relocated’ house;
·he sleeps in the lounge room so that the children and Z (with Ms T/her son) can have a bedroom each;
·he admits inheriting $80,000 in about 2012 from his mother’s estate and using these monies to buy and transport the relocatable home;[3]
·his nearest neighbours are 3km away (and it is a further 7km for the next neighbours);
·he acknowledges the ‘steel pole’ and ‘stove throwing’ incident but asserts he had no intention to cause the mother fear;
·he also acknowledges the ‘choke hold’ incident;
·he admits he used some swear words directed at the mother (eg. ‘fuck’ and ‘bitch’) but he denies referring to the mother as a ‘cunt’, ‘slut’ or ‘whore’;
·he admits that he was required to sleep in his car for the first couple of years after separation (hence he could not spend time with the children unless they went camping at some ‘free’ campsites although they were without showers); and
·he has held down some jobs but he is currently on Centrelink benefits.
Family Consultant
[3] Transcript, 27 August 2015, p.62 and 68.
Family Report
Ms A prepared the Family Report in this matter. Ms A provides a background to the dispute in paragraphs 1 to 3, describes the current arrangements for the children in paragraphs 4 to 5, the applications and proposals of the parties and the issues in dispute and identified during the assessment in paragraphs 6 to 9. Ms A sets out her observations of the parties from paragraphs 9 to 26 and her observations of the children from paragraphs 10 to 42. Ms A also relates the reports of principals of the schools that the children have attended or are currently attending at paragraphs 43 to 46.
Ms A provides her evaluation from paragraph 47 to 62 (which will be discussed later in this decision). In considering the circumstances of the family, Ms A came to the conclusion that there are really three options (see paragraphs 59 onwards of the family report):
a)X and Y continue to live with the father:
“Y would benefit from having his views upheld and being able to live the lifestyle that he enjoys. X might benefit from the opportunities that rural life provides and from getting outdoors rather than isolating himself in his bedroom but this advantage does not seem overly apparent at this stage. Both children would benefit from protection from issues of family violence. However, this assessment raises concerns about Mr Ashford’s style of interaction, approach to parenting and his capacity to meet the emotional needs of X and Y. This might be more of a disadvantage for X given his personality than what it would be for Y.”[4]
b)X and Y live with the mother:
“Both children might benefit from their mother’s style of interaction and approach to parenting and from their seemingly greater access to their older siblings when in her care. Both children would not benefit from any further exposure to family violence. X would benefit from having internet access, which provides him with an open means of communication and connection with others, and from the far greater possibility of him accessing a counselling service. Y may not benefit from his views not being upheld and consequent feelings of anger and disappointment. There is a chance that Y, at this point or at some point in the future, would refuse to live with his mother and implore his father to allow and assist him to live with him.”[5]
c)Separate the siblings; Y continue to live with the father and X live with the mother:
“The advantages and disadvantages for each boy of this option are the same as outlined above but there are some additional disadvantages based on them, as siblings, being separated. Neither parent considers it ideal to separate the siblings. It is noted that X and Y are the youngest of a group of six siblings, with the four older siblings being over 18 years old. They are currently separated from their older siblings, two of whom live independently. If X were to live with his mother, he would, at this stage, be reunited with his older brothers, W and Z. If Y were to remain living with his father, he would be separated from X but this might be seen as the natural consequence of being the youngest of six siblings (albeit, a few years earlier than it might otherwise occur). As previously mentioned, X and W are reportedly similar to each other and Y and Z are reportedly similar to each other. X and Y, both physically and personality wise, are quite different. There appears to be some feelings of closeness between them but they report fighting with each other and primarily engaging in their own activities and interests. Whilst separating X and Y would not be ideal, the potential impact on each of them would not necessarily eliminate this option.”[6]
[4] Family Report, paragraph 59.
[5] Ibid, paragraph 60.
[6] Ibid, paragraph 61.
At paragraphs 63 to 66 of the family report, Ms A provides the following recommendations:
“On balance, this family consultant tends to favour the option discussed at paragraph 61 – that Y continue to live with his father and X return to live with his mother.
It is recommended that, if X and Y live separately, they spend half of their school holidays with the parent with whom they are not living, so that the two boys are together for the whole of each school holiday period.
It is recommended that, if X and Y live together, they spend the majority of their school holidays with the parent with whom they are not living.
It is recommended that X access a counselling or mental health service for assessment and supportive counselling or, at the very least, that he access the services of his school counsellor.”[7]
[7] Ibid, paragraphs 63 to 66.
Oral evidence
Under cross examination, Ms A indicated that she had reconsidered her recommendations following her reading of consolidated affidavits and being updated as to the children’s recent interview with the ICL. While she maintains her recommendation that X should return to live with his mother, she now recommends that, if Y is now expressing a view that he may also wish to return to live with his mother, or would not oppose such, that move should be supported. Ms A opined that the change in Y’s view may be due to, or influenced by:
·his recent transition to high school;
·the fact that he has been spending more time of late with his mother; and
·the isolation of living in the father’s home (and if this outcome is to continue that may become more an issue for him as he ages).
Ms A also expressed some concerns about the father’s parenting style or capacity to parent.
Under cross-examination by Ms Carr, the family consultant conceded that the lack of access to the internet may also be a factor in forming Y’s view (not just to complement his school work but for social connection purposes).
Ms A also agreed to the suggestion that the children would benefit from the ICL explaining to them the orders to be made (and the judge’s reasoning for such). She also opined that the parties may be assisted by individualised counselling following release of the decision.
At this point I note and take into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provided an authoritative statement about how family reports should be treated in proceedings such as this case.[8]
[8] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Overall, given that Ms A is an independent party in these proceedings, the Child Inclusive Conference memorandum, Family Report and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court. It is noteworthy that Ms A was very confident in her evidence.
I will now consider the parenting dispute in light of the statutory pathway and applicable evidence.
Legislative requirements and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in s.60CC of the Act. These will be considered in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[9] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[9] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life.”[10]
[10] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
When making a parenting order, s.61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
In this case the mother seeks an order for sole parental responsibility. In contrast, the father seeks an order for equal shared parental responsibility.
It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects be either subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court (“the Full Court”) in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[11]
[11] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. This is one of the options proffered by the ICL.
I will consider the options available to the Court further following a discussion and analysis of the matters relevant under s.60CC of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[12] or alternatively substantial and significant time,[13] with each parent.
[12] Section 65DAA(1) of the Act.
[13] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
I note that neither party in this case is seeking an equal time parenting arrangement. It simply would not be practicable given the tyranny of distance between the parties’ respective residences.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Given the considerable distance between the parties’ respective residences, and the associated travel times, any substantial and significant time would have to involve school vacation times.
Best interests of the children
As previously stated, the Court is under an obligation to make parenting orders that it determines is in the child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC of the Act in the context of this case.
Primary considerations: s.60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence that, despite their difficulties and failures in communicating with one another, both parties accept the need for the children to have a meaningful relationship with the other party. That said, the parties differ on how this can best be achieved given the distance between the parties’ residences and their poor communication.
The evidence would suggest that the children are different in nature and personality. According to Ms A and the ICL, X presents as rather shy and sensitive whereas Y is outgoing. X finds his relationship with his mother ‘enjoyable’ and enjoys the activities he does with his mother and being able to use the internet. That said, the relationship between the father and X also appears to be good. Y clearly identifies more with his father and enjoys the country lifestyle where he can ride motorbikes and such. Y appears to have changed his views closer to the final hearing favouring to maintain a close and continuing relationship with X.
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[14] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both parents.
[14] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
One of the ICL’s concerns in this case is that the mother is more likely to foster a relationship between the children and the father. The ICL is far less certain about the father’s ability to foster a relationship between the children and the mother (and the other siblings that reside with the mother).
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Ms A has concerns about X’s mental health and opined that he may be depressed.[15] If that were the case, then I agree with the submissions made by the ICL and the mother that X would have much better access to the proper supports and services should he live with the mother. I also believe that the mother would be more supportive and provide greater assistance to X in this regard than the father as she presents as being ‘more in tune’, emotionally speaking, than the father. While the country lifestyle has much to offer both children, the relative isolation is also a relevant consideration.
[15] Family Report, paragraph 55.
The father and the ICL both raise concerns regarding the mother’s previous partner, Mr S. The father says the mother failed to protect the children from the family violence perpetrated in her home by Mr S when the children lived with her. The mother does not seem to appreciate the impact her relationship with Mr S had on the children. That said, the mother is no longer in a relationship with Mr S and says that she has learnt much from the demise of that relationship.
I have previously referred to some legitimate concerns about the lack of information about the mother’s boyfriend, Mr G, including his apparent interest in sports shooting. While the mother’s decision not to put Mr G on affidavit, or otherwise call him as a witness was unhelpful, there is no specific evidence that he prevents a risk to the children. I note again that neither the ICL nor the father sought any restraint about the children coming into contact with, or being left alone with, Mr G.
The father also raised some legitimate concerns about the inappropriateness of the mother having dogs in the house.
The father’s concerns about Y’s bike incident are understandable and no doubt the parties and the children have reflected upon how such accidents can be avoided in the future. That said, the circumstances appear accidental and it would seem that the father himself knew that Y rode a bike to school and presumably he, like the mother, factored in the inherent risks.
At this stage I note that the Court is required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).
Additional considerations: section 60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and any other 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
This is a significant issue before the Court in this matter as both parties and the ICL referred to the children’s views as being significant in this matter. Both children are of an age where their views are taken seriously, if not determinatively, by the Court. Nevertheless, I note that each party asserts that the children have expressed views that they wish to live with each respectively and that the other has influenced the children.
X and Y are described as quite different boys in respect of temperament and interests and this has, unsurprisingly, flowed through to their respective ‘views’ regarding their living arrangements. X, though the elder, appears more reserved and has consistently refrained from giving a view either way.[16] Y, is confident and consistent in his view that he wishes to remain living with the father.[17]
[16] Family Report, paragraph 55.
[17] Family Report, paragraph 35.
I note that as part of the family report, Ms A interviewed the two children.
Firstly, in relation to X, Ms A states:
“X reported that he is “good” and “feeling fine”. He described being pleased with having completed, and passed, his school exams. X appears to feel content in his general level of happiness. He said that he does not have depressing moments but that, whilst he has fun at school, he does not do much at home. He identified that Y spends time with their father as they enjoy similar activities but that he tends to spend most of his time playing on his tablet. He said that, if it were not for the isolation of his father’s property, he would spend time with friends outside of school.
X seems to feel that his relationship with his father is distanced, due to him not looking or acting like his father and them not sharing any interests. He commented on his father’s physical appearance and presentation being somewhat unkempt. He said that he is not like that. He commented on his father’s sense of humour and again identified that they are different in that respect. X reported that his father has been frustrated and irritated due to his having little money and his needing to register his car and travel to Sydney for court.
X spoke of his relationship with his mother being enjoyable. He said that she can be amusing and takes him out places. However, he struggled to provide examples of his experiences with his mother. He said that he likes having access to technology when he is with his mother but does not consider that it is a shared interest of theirs. X said that he found the time he spent with his mother in the September-October holidays “good”. He said that he received a birthday present from his mother which he liked and that he got to use the internet which was “brilliant”. He said that he and Y spent time with their mother’s friend Mr G and his son, C, which he found enjoyable.
X said that he did not want to express a view about with whom he should live. He said “I just want it to be fair”, but did not elaborate on how this might be achieved. When asked how he would feel if the Judge decided that he live with his father, X said that it would be the same as now and that his father would be happy because of the money he had spent on trying to get him and Y to live with him. When he was again asked how he would feel, X said he did not know. When asked how he would feel if the Judge decided that he live with his mother, X said that he would feel sorry for his father because he would have no one living with him. When he was again asked how he would feel, X said he did not know. X said that (omitted) High School and (omitted) High School are “even to me”. He said that, if he were to live with his mother, he is not sure whether he would recommence cadets.
X said that he would like to spend all of his school holidays with the parent with whom he does not live. When asked how he would feel if he and Y lived separately, X said that they would see each other in school holidays and that he would be “not really fussed on it”. When asked if he had any particular message for the Judge, X said “I don’t know what I want to do”. X said that he does not think about his options for living arrangements much but he identified that he likes spending time with his half-brother, U and his sister, V. X indicated that he would like to live in (country omitted) when he is an adult.”[18]
[18] Family Report, paragraphs 27 to 31.
In relation to Y, the Family Report supports the evidence before the Court that the child identifies with, and wants to remain living with his father:
“Y described himself as being reasonably content and happy in his life. He said that he is happy because, at his father’s home, “we can really do what we want”, for example ride motorbikes. He said that he does not like that he cannot go out or spend time with friends on the weekend at his father’s home the way he could at his mother’s home. Y said that he likes his current school, but acknowledged that he is “not fond” of reading. He said that he is looking forward to high school where he will get to do more things such as sport and music.
Y perceives that his parents hate each other based on the things that they say about each other. He said that he feels “annoyed” when his parents argue.
Y described his relationship with his father as being “good”. He indicated that his father gives him freedom and opportunities to engage in enjoyable activities. He said that his father helps him do things but that they do not talk with each other very much. Y said that there are also some bad times between him and his father when they argue and when his father is annoyed at other things, for example the generators breaking down.
Y described his relationship with his mother as being good sometimes when they go out but also that they had argued sometimes about such things as him cleaning his room. Y said that he enjoys regularly speaking to his mother on the phone and that he had a good time spending time with his mother during the September-October 2014 school holidays. He reports having gone to the movies, spent time with his half-brother, U, and having spent time with his mother’s friend Ms G and his son. He reported that Mr G has guns and shoots in contests. Y said that his father also has a gun at their home which he has shot. Y said that he had, at the time, wanted to spend half his holidays with his father and was annoyed with the plan to spend two weeks with his mother but that, when he was there, it was “fine”.
Y did not indicate that he was aware of his parents’ proposals regarding with whom he should live. Y said that he wants to stay living with his father because he “can go outside and do whatever”. He said that, if the Judge decided that he should live with his mother, he would feel angry and annoyed. Y said that he would want to spend most of the school holidays with the parent with whom he is not living. He acknowledged however that, whilst he is currently living with his father, he does not want to spend all of his holidays with his mother. Y said that, if he and X were to live separately, he would be “kind of lonely”. He also said that, if X were to live with his mother, it would not change his view that he wants to continue living with his father.”[19]
[19] Family Report, paragraphs 35 to 39.
I note that at the commencement of the final hearing, Mr Ladopoulos reported what the children had been more recently interviewed by the ICL and that “they have shifted away from the views that they expressed to the family consultant” and they were “more amenable to being back with the mother ”.[20]
[20] Transcript, 27 August 2015, page 3.
X, in particular, indicated to the ICL that he wished to return to live with his mother, although “he expressed very clearly was that he wanted to finish this year at (omitted)”.[21] Mr Ladopoulos stated that while X was “adamant” that he wanted to remain at (omitted) High School to the end of this current school year, he is finding his current circumstances “difficult in terms of the isolation”.[22]
[21] Ibid, page 4.
[22] Ibid.
In relation to Y, Mr Ladopoulos stated:
“In terms of Y, his expressed views weren’t as clear in terms of him wanting to be living with the mother but they have shifted in the sense that at the time of the family report his expressed views were quite clear that he wanted to stay with his dad. His position now was, “Well, if I have to go back and live with my mum that would be okay too.” So that’s where we are with … He is in year 7 now so there has been a bit of a change for him and that quite possibly is making the difference. His interest in things might be changing and again the isolation of the home might be sort of impacting on him as well now.” [23]
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons
[23] Transcript, 27 August 2015, page 4-5.
The evidence clearly suggests that both parties love and enjoy a relationship with the children. I am also satisfied that the children love and respect their parents and appear to have a good relationship with one another and their siblings.
I note the following comments from Ms A in the Family Report:
“Ms Ashford is warm in her approach with the children and she offers them positive affirmations and encouragement. This style of parenting is beneficial to children’s emotional, cognitive and social development.”[24]
“Mr Ashford’s approach with the children is hostile and critical mixed with playfulness and mateship. This style of parenting can be very confusing and distressing for children. It does not tend to promote functional emotional, cognitive and social development. It does not typically provide adequate warmth, comfort and structure. It does not model psychologically healthy means of emotional connection. The boys ages provide some protection from the damaging effects of this style of interaction but they have likely been exposed to it their entire lives. Mr Ashford seems to believe that his approach is beneficial to the children. Whilst it is not abusive, this family consultant does not consider Mr Ashford’s style of interaction with the children to be in their best interests.”[25]
“Both parents struggled to engage each child in discussion about their relationships. It seems that the family may be limited in their capacity to connect with each other on an emotional level. This will have an impact on X and Y’s development and on their capacity to form relationships as adults. Each parent alleges that the other does not have the capacity to meet the children’s basic needs. However, the children do not raise such issues and neither did any of their teachers.”[26]
[24] Family Report, paragraph 51.
[25] Family Report, paragraph 52.
[26] Family Report, paragraph 50.
Both parties say it is not appropriate for the children to be separated.[27] The Court agrees with this.
Section 60CC(3)(c): the extent to which each of the parents provide an opportunity to participate
[27] Family Report, paragraphs 12 and 22.
The parties have had difficulty communicating since separation. This was acknowledged by both parties under cross examination.
I note the following comments from Ms A in the Family Report:
“The parents appear to have very little communication with each other and each seems to hold significant feelings of anger toward the other. However, it is noted that both parents indicated that they were able to communicate and resolve a misunderstanding on Ms Ashford’s part and effectively implement the children’s time with Ms Ashford in September-October 2014. In addition, it is noted that, prior to January 2014, the parents managed the parenting arrangements for several years without court intervention in a manner which, despite some problems, seems to have been generally effective in providing the children with the opportunity to maintain their relationships.”[28]
[28] Family Report, paragraph 49.
The mother stated to Ms A that “she feels like she is on trial” and being punished for having had a “stupid” relationship with Mr S. Though this relationship is now over, the mother believes this was what allowed the father to have the children live with him.[29] Ms A opines:
“whilst Ms Ashford acknowledges that her former partner, Mr S, behaved violently, she does not seem to understand or accept the impact of this on X and Y. She continues to suggest that the children never raised any concerns with her, therefore it was not a problem. She dismisses the entire issue by saying that she is no longer having contact with Mr S. It is noted that it is possible that Mr Ashford built upon, and took advantage of, the issues in Ms Ashford’s household. It is also noted that it was Mr S who was allegedly violent and Ms Ashford was a victim of such violence. But it does seem apparent that Ms Ashford was not appropriately protective of X and Y in those circumstances… With respect to Mr S, Mr Ashford did behave in a protective manner toward the children and was responsive to their reported complaints and their needs. However, his decision to retain the children and then move them 650 kilometres from their mother, schools and friends may well have been based more on his best interests rather than the children’s.”[30]
[29] Family Report, paragraph 9.
[30] Family Report, paragraphs 51 and 52.
Of particular concern to the Court are of course the boys’ circumstances and the decision made by both parents in late 2013. The father’s evidence about the retention of the boys in late 2013 leads the Court to the conclusion that it may have been (or was) planned beforehand or at least influenced by the father. It seems very unlikely that the mother would have allowed the boys to go into the father’s care if she knew the father was likely to retain them.
Overall, the father’s lack of child-focus is well demonstrated by his decision to allow X to come to Sydney for Christmas 2014 to spend time with the father’s family and stay with his sister and not tell the mother of these arrangements. This demonstrates to the Court the father’s limited insight into the feelings of the child (let alone the mother) and the total failure of the father to provide the mother the opportunity to spend time with the boys, particularly X. In addition, there was a failed opportunity for communication on Christmas Day 2014 which draws a similar criticism from the Court.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled their obligations to maintain the child
There is evidence that both parties struggle financially. According to Ms A:
“Ms Ashford alleges that Mr Ashford has always wanted to “live like a hermit” and, by having the children live with him, he can receive Centrelink benefits for them and never has to work.”[31]
[31] Family Report, paragraph 9.
The father says that he paid the mother about $600 per week in child support when the children were living with her. [32] Given the financial circumstances of the parties I find this very difficult to believe.
[32] Transcript, 27 August 2015, p.68.
There is evidence that the father made an application in April 2014 to the Child Support Agency for the mother to pay him child support which raises a question mark about whether these money issues motivated the father’s decision to retain the boys.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation
The children have gone through several changes in their young lives. The children were quite young when the parties separated in 2009 and lived with the mother for over four years prior to being retained in the father’s care in December 2013/January 2014.
Strictly speaking, the father’s proposal will not produce any significant change for the children. That said, I note Ms A opines that:
“It is difficult to determine how X perceived that change in his life, but he seems to experience guilt related to feeling sorry for each of his parents if they do not have him and Y in their care. It is this guilt, and the burden of feeling responsible, which likely adds to his reluctance to express any kind of view.”[33]
[33] Family Report, paragraph 56.
I note the earlier comments of Mr Ladopoulos in respect to the more recent change in the children’s views.
The ICL’s proposal, which both parties support in relation to the spend time arrangements, arguably provides for the children to have an ongoing relationship with the other.
The Court acknowledges that should orders be made for the children to live with the mother that would represent a substantial change for the children. Apart from there being a further change to the children’s primary carer, such an outcome would require the children to change schools again. That said, X would be returning to his old high school and both the children would be returning to an area that they are familiar with and presumably where they may re-engage with previous friendship groups.
The mother says the children’s best interests are not served by living in the ‘extreme isolation’ of (omitted) with the father.[34] She says the children’s school is about 80km away and the children are isolated from their friends and other siblings in Sydney. Ms A referred to the current and potential effect of the isolation in her family report. For example, she noted that Y finds it difficult at times “as it means limited opportunity to spend time with friends” however he nonetheless maintained his preference to continue living with the father.[35] As for X, Ms A commented that he may need access to counselling support and possibly to mental health assessment services which are more readily available near the mother’s residence.[36]
[34] Mother’s case outline, page 5.
[35] Family Report, paragraph 54.
[36] Family Report, paragraph 56.
Ms A commented that she had concerns that the lack of internet for X “meant a lack of social connection” though acknowledged this was less of an issue for Y who enjoyed the outdoors.[37]
[37] Transcript, 28 August 2015, p.109.
It is clear that there will be different opportunities and levels of access to friends, facilities and services for the children depending on who they live with.
Section 60CC(3)(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 about 650km apart and it takes almost seven hours to drive one way between the residences.
Both parties appear concerned about the financial expense of the children travelling between them on a frequent basis. It appears the children catch public transport being a bus from (omitted) to (omitted) and then a train from (omitted) to Sydney (and return).
The children currently attend (omitted) High School which is about 80km from the father’s residence in (omitted). This necessitates the children being driven from the house in a small bus to a pickup point in order to catch the coach to school .
It also appears that telephone access can be difficult at the father’s residence, and that internet access is non-existent. The father says the phone “occasionally cuts off” however there is a location about 5 minutes’ drive from his property where one can get service.[38] I note that Ms A comments that:
“The biggest obstacle to X and Y having the opportunity to maintain relationships with both parents, is the distance between their parents’ homes. Whilst the children have experienced problems in their mother’s household (at least with respect to Mr S’s involvement) Mr Ashford’s decision meant that the children had to leave their stable schooling environments and did not see their mother for nine months. The distance between the parents’ households means that the children will not be able to spend time with their other parent frequently and any arrangements for the children to spend time with their other parent will likely place financial burden on both parents. There are also practical difficulties as Ms Ashford does not drive.”[39]
“Ms Ashford said that communicating with the children on the phone each week is difficult because she finds that they are not doing anything and therefore have nothing to talk about.”[40]
[38] Father’s affidavit filed 15 July 2015, paragraph 68.
[39] Family Report, paragraph 48.
[40] Family Report, paragraph 11.
That all said, I note that the parties now agree on times for the children to ‘spend time with’ and ‘communicate with’ the other party that they are not ordinarily residing with.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
Both parties make criticisms of the other’s parenting capacity and, as discussed, both do have some limitations in their parenting capacity. In the Family Report Ms A states:
“Ms Ashford said that, as a parent, she has a lot of patience and likes to explain decisions to the children, without talking down to them. She said that she is not strict but will “put my foot down” when required. She said that she likes to feel that the children can talk to her about anything and that she likes to have fun with them. Ms Ashford commented that, over the past few years, she has had limited opportunity to have fun with the children because they have spent all of their weekends and holidays with their father.”[41]
[41] Family Report, paragraph 14.
The father submits that he has the appropriate capacity to provide for the children’s’ needs. This is disputed by the mother who raised concerns about the father’s capacity to provide for the children’s emotional and intellectual needs.
The ICL also raised concerns about the father’s capacity to provide the children’s needs due to the isolation of his residence. Moreover there are concerns regarding the father’s capacity to provide for the children’s emotional needs “due to his personality traits and insight about such needs”.[42] In particular, the ICL argues that the father showed little insight about the impact of his decision to keep the children with him and facilitate no time (and very limited communication) with the mother from December 2013 until about August 2014. It is apparent, according to the ICL, that the mother had to commence these proceedings for time and communication to recommence.
[42] ICL’s case outline, p.9.
In response, I note that the father asserts the children did not want to see or speak with the mother during this time.[43] While I acknowledge that the children may have expressed such a view to the father, his actions were somewhat irresponsible. That said, I further note that another factor raised by the father to explain his actions were the alleged risks and neglect to the children occurring at the mother’s home during this time.
[43] Transcript, 27 August 2015, p. 65-68.
I turn now to the children’s education. There are comments in the family report from the principals from the schools attended by the children currently as well as those attended when living with the mother in (omitted). The principals raised no welfare concerns on either end although there are some educational issues which appear to have been addressed (and continue to be addressed) and which can arguably be met at either school.
The father provided a letter from the principal of (omitted) High School dated 13 July 2015 which states that the children “have strong friendships with other students, are happy and confident boys who are enjoying their schooling at (omitted) High”, that attendance is ‘exemplary’ and the boys appear to be happy living with the father.[44]
[44] See Annexure A 2 of the Father’s affidavit filed 15 July 2015.
I note that Ms A makes the following comments in the Family Report:
“Mr Ashford said that he thinks that (omitted) Public School has assisted Y to improve his reading and prepare him for high school. He considers that X is performing well at (omitted) High School and achieving average grades. Mr Ashford said that his own reading and academic performance at school had been poor, but that he can read. He said that he has told X that, if he needs help, he should ask his teacher as he (Mr Ashford) has limited capacity to help him with more advanced work. Mr Ashford said that he has been unable to facilitate X attending upon the counselling service in (omitted) due to his being unable to afford the petrol to drive there. He said that he has spoken to the high school principal and that X has seen the school counsellor, but that she has not been available lately.”[45]
“There is nothing that this family consultant is aware of that necessarily suggests that (omitted) or (omitted) High School would be better able to meet the needs of X and Y.”[46]
“Ms Ashford described Mr Ashford as not having been involved in most parenting routines and for all the children. She said that he lets the children do anything and has said to her “let them grow up” in response to her wanting to be protective, for example by her having the children wear bike helmets. Ms Ashford said that she is concerned that Mr Ashford favours Y over X, in the same way that she considers he favoured Z over W. She thinks this is due to Y and Z being more similar to their father than X and W. Ms Ashford said that Mr Ashford is “rough” in his interactions with the children, uses “foul language” with them and “talks to them like men” as if they were his mates rather than his children.”[47]
[45] Family Report, paragraph 21.
[46] Family Report, paragraph 57.
[47] Family Report, paragraph 16.
On this issue, the ICL submitted as follows:
“With respect to the Father, there are concerns regarding his capacity to adequately provide for the needs of the children, essentially due to the isolation of his home. There are also some concerns about his capacity to provide for the emotional needs of the children due to his personality traits and insight about such needs. Amongst the concerns about the Father’s capacity to adequately provide for the children’s emotional needs is a concern about his willingness and/or ability to facilitate the children’s relationship with the Mother while the children have been living with him. The children spent no time with the Mother from December 2013 (when the Father took the children to (omitted) to live with him) until August 2014 (when the Mother commenced these proceedings). They also had very limited communication with her. The Father asserts that this was because the children did not want to see or speak to the Mother. With respect to the Mother, if the allegations of the Father about the Mother’s past failure to protect the children from domestic violence and neglect are substantiated, the Court will have concerns about whether there is a risk of this happening again in the future.”[48]
[48] ICL’s Case Outline, page 9.
As previously stated, while X has recently indicated to the ICL that he now wishes to return to live with his mother, he was adamant that he wanted to remain at (omitted) High School to the end of this current school year. While the ICL acknowledges that Y’s views were less clear, one factor that appeared to be influencing Y’s new-found ambivalence about remaining in his father’s care was the transition next year to Year 7.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
Based on the overall evidence, both children appear to present as relatively mature. I refer to previous comments.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parties make criticisms of the other.
While I agree with the father’s submission that the mother lacked particular insight into the adverse consequences arising from her former relationship with Mr S, I am satisfied that she was sincere when she asserted that she had learnt from the experience. That said, I also agree with the father’s further submission that there are some concerns raised by the lack of information about the mother’s new partner, Mr G.
I also note that the father also asserts that the children have expressed that the mother feeds them fast food, does not wash the linens and does not have enough blankets for them.[49]
[49] Father’s affidavit filed 15 July 2015, paragraphs 61-62.
The mother’s criticisms of the father’s behaviour in engineering the children to remain in his care are valid. Ms A records in the Family Report that:
“Ms Ashford was particularly upset regarding her having had to report X, Y and Mr Ashford as missing persons in January 2014, when the children were not returned to her care and she could not get in touch with them. She said that she had genuine fears that they may have been injured in a car crash and she questions why Mr Ashford did not at least communicate to her that they were safe. Ms Ashford was also upset that Mr Ashford was intending to return to (omitted) with the children the next day after these interviews without facilitating the children spending some time with her.”[50]
Section 60CC(3)(j) and (k): family violence and family violence order provisions
[50] Family Report, paragraph 10.
There is an unfortunately a history of family violence between these parties, though, not surprisingly each party presents a different version of the relevant events.
The mother says the marriage was marred with verbal and emotional abuse and referred specifically to an incident in late 2004 where the father threatened her with a steel pole.[51] The father concedes that there were arguments and, under cross-examination, admitted that on one occasion he was holding a steel bar (though was not pointing it at the mother) while the parties were arguing and damaged the garage door with the pole after the mother locked him out and threw a portable stove.[52] The father seemed to place little significance on the damage he caused on this occasion as it was his property anyway.[53] The father denies that he meant to be threatening. There was also an incident in about 2001 where the father conceded he held the mother in a chokehold though ‘let go’ when he realised.[54] The mother says their older child, W, witnessed this incident and had to kick the father to make him release her.[55]
[51] Transcript, 27 August 2015, p.29.
[52] Transcript, 27 August 2015, p55.
[53] Transcript, 27 August 2015, p55-56.
[54] Transcript, 27 August 2015, p.55.
[55] Transcript, 27 August 2015, p.28.
The father denies the mother’s accusations regarding verbal and emotional abuse. That said, he admitted to using the words ‘fuck’ and ‘bitch’ sometimes in front of the children, but not in relation to the mother, and denied using ‘cunt’ or ‘slut’.[56]
[56] Transcript, 27 August 2015, p.56.
The father asserts the mother has, and continues to, verbally abuse him.
In addition, the father told Ms A:
“…when the children lived with their mother, they were exposed to violence from their mother’s then partner, Mr S, and that their mother also neglected their basic needs. He alleges that Mr S was using cannabis. He said that he has some concerns that Ms Ashford may be abusing cannabis and possibly other drugs.”[57]
[57] Family Report, paragraph 23.
Despite the allegations made by both parties, there does not appear to be any family violence orders in place at any time.
As already canvassed, the mother was also the victim of significant physical family violence at the hands of her former partner, Mr S. Under cross-examination the mother admitted that the children may have witnessed some of the incidents though she thought most of it occurred when the children were not around. There is evidence before the Court that the mother did not appreciate the impact of being exposed to the family violence on the children.
The mother concedes in her affidavit that “I failed to protect them from family violence, physical and verbal abuse, which I also received from Mr Ashford. But I ensure it will never happen again.”[58] The mother’s relationship with Mr S ended in 2014.
[58] Mother’s affidavit filed 21 August 2015, paragraph 86.
The father suggests that, given the history, the children may be placed into a similarly dangerous scenario of violence in the mother’s home as so little is known about her current partner, Mr G. As stated, there is very little evidence about Mr G asides that he apparently has MS and requires the use of a cane to walk and lives close to the mother’s residence.
On this issue, Mr Ladopoulos made the following submission in closing:
“There is always some risk about some harm everywhere, and here there is a specific risk of the boys being exposed in the future to domestic violence in the mother’s home. But my submission is that the evidence wouldn’t support a conclusion that that risk is unacceptable and that’s the test.
My submission is that when one balances the risk of that occurring with the other factors about which submissions have already been made, the court would find that that risk is acceptable, and that’s because there’s evidence about the boys liking and getting on with Mr G and his son. So there’s no evidence that he has been a problem in any way and he’s somebody that the boys know. And also, in terms of the boys’ ages, the court would have confidence that, were there to be a problem, they’re old enough to be able to let appropriate people know so that something can be done about it, so, again, my submission is that whilst there is a risk, it’s not an unacceptable risk.”[59]
Section 60CC(3)(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
[59] Transcript, 28 August 2015, p.151.
While the Court proposes that any order that it makes be subject to agreement between the parties that such is of benefit to the children, it is clear that the parties will continue to require specific orders to assist them in their future parenting.
Generally speaking, the Court is hopeful that, once these parenting proceedings are resolved and further defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. There is nothing to suggest that the making of the orders sought by either of the parties, but in particular the orders sought by the ICL, are more likely to lead to further proceedings.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance that requires comment that have not already been discussed in these reasons.
Conclusion
After considering the evidence and submissions in light of the structured discretion contained in the Act, the Court is satisfied that, with some adjustments outlined below, orders in terms of what is proposed by the ICL are in the children’s best interests.
Parental Responsibility
As stated, the parties and ICL each had a different proposal as to parental responsibility.
The ICL seeks that no order for parental responsibility be made in the circumstances. This would mean that each parent would exercise parental responsibility jointly and severally.
The father says the presumption of equal shared parental responsibility does not apply and s.61DA(2)(b) is applicable due to the history of family violence between the mother and her previous partner which occurred in the presence of the children. Furthermore, he says the communication between the parties is so poor (particularly referring to the mother’s verbal abuse of him) and the aggression is so excessive that s.61DA(4) applies. The father seeks sole parental responsibility for the children.
The mother submitted that an order for equal shared parental responsibility is not in the children’s best interests. However, Ms Carr was not particularly confident that the family violence in this case would be sufficient to rebut the presumption in circumstances where the allegations are historical and numerous factual issues regarding the allegations are in dispute. Moreover there is no independent evidence though the father did make some concessions in this regard. The mother submits that the ICL’s proposal for no order to be made in respect of parental responsibility is unworkable and seeks an order for her to have sole parental responsibility.
With respect, I do not agree with the ICL that this is a matter where no order should be made regarding parental responsibility. As previously stated, the effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. I am not satisfied that the evidence would suggest that any continuation of this outcome is in the best interests of the children. After all, the father’s unilateral decision to retain the children in late 2013/early 2014 was the catalyst for these proceedings.
Although there is some evidence regarding family violence which may cross the threshold of rebutting the presumption, as the mother herself concedes, those allegations are historical and a number of the relevant facts are in dispute. Moreover, there is no independent evidence to support or negate the disputed incidents.
I note that Ms A stated in the Family Report that:
“The lack of communication between the parents might suggest the need for one parent to hold sole parental responsibility. However, once the current issues in dispute are determined, it may be possible for the parents to share parental responsibility. The parents have five children together and, whilst their youngest two are still under 18 years of age, it may be beneficial to the maintenance of relationships between each child and parent if both parents contribute to major decision making.”[60]
[60] Family Report, paragraph 58.
It is noteworthy that the parties were able to reach agreement on quite a few issues, not least of which was the arrangements to facilitate time (including changeovers and such) for the children with the non-resident parent. This gives the Court some confidence in their ability to move forward and act in the children’s best interest and foster a relationship with the other moving forward.
Nevertheless, on balance, I find that the presumption favouring equal shared parental responsibility is rebutted as the Court finds that it is not in the children’s best interests. That said, I find it appropriate that there be orders for the parties to have shared parental responsibility for the children in all areas except health and education. The mother can have parental responsibility for the children’s long-term education and medical decision-making. The mother will be under a positive obligation to advise the father of decisions to be made and to take the father’s views into account. Moreover, the parties will be required to ensure that the relevant school(s) and medical practitioners allow both parties to receive relevant information about the children as appropriate and/or requested.
Given that there is no order for equal shared parental responsibility, s.65DAA of the Act is not triggered and, strictly speaking, the Court is not required to consider whether the children’s best interests would be served by making an order that she spend equal time or, alternatively, spend substantial and significant time, with each parent. Nevertheless, I have already noted that neither party seeks an equal time arrangement (and nor would it be practicable) and the parties have reached agreement about the ‘spend time with’ arrangements, regardless of the ‘live with’ outcome to be determined by the Court. Consequently, there will be ‘spend time with’ Orders consistent with their agreed position, the Court being satisfied that such Orders are in the children’s best interests. I make further comments on the ‘spend time with’ arrangements below.
Live with arrangements
This is a difficult decision for the Court to make. Notwithstanding the views of the children, the Court has concerns regarding the deficiencies in both parties’ evidence about their current households. The mother glosses over the lack of evidence regarding her current partner Mr G, and the father has provided little evidence regarding Z, his partner Ms T and their child who reside with him.
Nevertheless, I agree with the ICL that there is no unacceptable risk of harm to the children being in the mother’s care. I am also satisfied that there is no unacceptable risk of harm to the children remaining in the father’s care.
However, on balance, I find that it is in the best interests of the children to return to live with the mother. I am persuaded by the arguments advanced by the ICL and the mother previously referred to. That outcome also reflects X’s view and may now reflect Y’s view. As previously stated, neither party supported splitting the siblings. The Court also finds that any separation of the siblings would not be in their best interests.
As noted above, the parties more or less reached agreement regarding the consequential orders to be made with the non-residential parent. This is sensible. As stated, I am satisfied that the ‘spend time with’ arrangements are in the best interests of the children and reasonably practicable. The agreed arrangements will have the children spending time with the father as follows:
·for eight (8) consecutive nights in the school holidays at the end of Terms 1 and 3 each year;
·for 12 consecutive nights in the school holidays at the end of Term 2;
·for the long summer school holiday period:
o at the end of Term 4 in 2015, for 14 consecutive nights commencing on 3 January; and thereafter;
o in years ending in an even number for 21 consecutive nights commencing on the second day after the last day Term 4; and
o in years ending in an odd number, for 21 consecutive nights commencing on 3 January; and
·such other times as the parties agree to in writing.
I am satisfied that this arrangement will allow the children to maintain their relationship with the father and their other siblings. The parties’ agreement with respect to changeovers, referred to below, appears affordable and will also ensure that these times are spent.
Other orders
As stated, there will be orders flowing from the ICL’s Minute that were agreed to and/or were not contentious. This includes orders for the following:
·the retention of interim orders until 21 December 2015 when these final Orders will commence;
·changeovers and travel arrangements (including payment of the associated costs) to the effect that each party organise and pay for the children to come into their respective care;
·communication with the parent the children are not otherwise with from 11:00am to 11:30am every Saturday;
·the mother provide and keep the father informed regarding the children’s health and medical appointments etc;
·the father is permitted to attend and discuss the children’s health with medical practitioners, and the parties are to advise the other as soon as practicable of medical emergencies involving the children;
·the children’s school is authorised to provide both parties with reports, notices and such and the parties can each attend school events and extra-curricular activities;
·the parties keep each other advised of their contact details and give at least 14 days advance notice if they change their residence; and
·various restraints regarding discussing the proceedings with the children and/or denigrating the other party in the children’s hearing and/or presence.
The children would benefit from the ICL explaining to them the orders to be made (and the judge’s reasoning for such). The ICL will thereafter be discharged. I note that the ICL is not seeking costs in this matter as both parties are legally aided.
The parties may be assisted by individualised counselling following release of the decision.
There will be final Orders and Notations of the Court to reflect this decision, the Court being satisfied that such Orders are in X and Y’s best interests.
I certify that the preceding one-hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 11 December 2015
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