Atkins and Caldwell and Burns
[2010] FMCAfam 940
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATKINS & CALDWELL & BURNS | [2010] FMCAfam 940 |
| FAMILY LAW – Children – young parents – child lives with Maternal Grandmother who is primary carer – multi-cultural environment for child – Aboriginal heritage – allegations of abuse – consideration of “unacceptable risk”. |
| Family Law Act1975, Part VII, ss.60B(1) (b), (2), (3), 60CA, 60CC(1), (a), (2) (b), (3) (b) (i), (ii), (c), (h), (i), (4), (4A), 61DA (1), 65DAA(1) (a) (b) (2), (3), (5) (b), (c) Evidence Act 1995, s.140 |
| A v A [1976] VR 298 R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Journal of Family Law 276-282 |
| Applicant: | MS ATKINS |
| First Respondent: | MR CALDWELL |
| Second Respondent: | MS BURNS |
| File Number: | CAC 689 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 27 July 2010 |
| Date of Last Submission: | 27 July 2010 |
| Delivered at: | Canberra |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| The Applicant Grandmother: | In person |
| Counsel for the Respondent Husband Solicitors for the Respondent Husband: | Ms A Tonkin Strong Law Pty Ltd |
| Solicitor-Advocate for the Respondent Mother Solicitors for the Respondent Mother | Ms P Lyndon Watts McCray McGuinness Eley |
| Solicitor-Advocate for the Independent Children’s Lawyer Solicitors for the Independent Children’s Lawyer | Mr D Ridge Barker & Barker |
ORDERS
[X], born in 2007, live with her Father as follows:
(a)Until 15th November 2010:
(i)from 10.30 a.m. on each Tuesday until 3.30 p.m. on Thursday; and
(ii)from 10.30 a.m. on each Saturday until 10.30 a.m. on Sunday;
(b)From 15th November 2010 until she commences school:
(i)from 10.30 a.m. on each Tuesday until 3.30 p.m. on Friday; and
(ii)on each alternate weekend from 10.30 a.m. on Saturday until 3.30 p.m. on Sunday;
(c)Upon [X] commencing school:
(i)[X] spend time with the Father on each alternate weekend;
(ii)on every other weekend, with the Maternal Grandmother from after school Friday until before school on Monday.
For the purposes of Order 1(a) and (b) above, changeover is to take place at a neutral and recognised Contact Centre, such as Marymead, or as agreed between the parties.
The matter be adjourned for further mention on 7th September 2010 at 4:15PM.
AND IT IS NOTED THAT:
(A)The Independent Children’s Lawyer will make the necessary enquiries in relation to the services and availability of any Indigenous Counselling services - or similar therapeutic counselling agency - to assist the parties’ to the proceedings, with Chambers to be informed.
(B)Enquiries will be made of the Family Consultant Ms L as to her availability to provide mediation services to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Atkins & Caldwell & Burns is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 689 of 2008
| MS ATKINS |
Applicant
And
| MR CALDWELL |
First Respondent
| MS BURNS |
Second Respondent
REASONS FOR JUDGMENT
A. Introduction
The following oral judgment has been revised from the transcript. The primary revision is to include, in full, references from and citations to reports and cases that were referred to in more abbreviated form in the course of delivering the judgment.
The competing applications currently before the Court arise out of long-running proceedings that involve multiple parties but just the one child – [almost] three-year-old [X].[1]
[1] [X] turns 3 on [omitted].
The issue to be resolved, which concerns primarily how much time [X] spends with her Father, arises in circumstances that are not completely new. Subject to what is said later, the order that is sought would provide a slight increase in time that she spends with her Father. That order is formally opposed by [X]'s Mother and maternal Grandmother, essentially on the basis that there is such a level of conflict between the adults involved, it would be detrimental to [X] to allow the increase in time.
On its face, there is a certain illogicality with the opposition to the increase in time, because the conflict is essentially between the parties. Subject to what is said later in these reasons, provided [X] can be properly and appropriately shielded from that conflict (in the event that it continues), logically it is difficult to see how the modest increase in time can or should be opposed. The question to be addressed, however, is not whether it is logically consistent or appropriate for the increase in time to occur, but whether, from a legal perspective, such an increase in time is in [X]’s best interests?[2]
[2] Cf. s.60CA Family Law Act 1975.
Since the making of Orders in May 2009 by consent, the procedural history may be summarised as follows.
By letter dated 7th January 2010, the solicitors for [X]'s Father, Mr Caldwell, advised the then solicitors for Ms Atkins, the maternal Grandmother and primary carer for [X] that, because of [unsubstantiated] allegations of abuse against Mr Caldwell and the involvement of ‘Care and Protection’, [X] would not be returned to Ms Atkins, and that an application for change of residence would be made shortly by Mr Caldwell.
Clearly, before the foreshadowed Application could be filed on behalf of Mr Caldwell, on 11th January 2010 Ms Atkins filed an Application for the return of [X] to live with her and, among other relief sought, that the time the child spend with her Father be suspended until a third-party assessment could be made. The matters currently before the Court arise out of this recent procedural history.
I should also mention that although the proceedings had been formally under my care and control, because of a potential conflict of interest arising out of a member of my Chambers’ staff having had some involvement with Ms Atkins as an employed solicitor, the matter was transferred to the docket of Brewster FM. Upon that member of staff leaving the Court, the matter has recently returned to my docket.
For the sake of completeness and ease of reference, (a) the formal orders agreed to by consent last year are attached to these reasons- marked as “Annexure A” and (b) those sought by each of the parties now, are set out below.
In particular, I note that (i) the Consent Orders of May 2009 provided for a graduated increase in the time that [X] spends (and is to spend) with her Father; (ii) the Orders now sought by the Mother, Ms Burns, also provide for a graduated increase in the time that [X] spends with her Father;[3] and (iii) the Orders sought by Mr Caldwell, provide for a small increase in the time that he spends with his daughter. Thus, it may be appropriate simply to characterise the current opposition to Mr Caldwell’ proposal more as a question of degree and timing rather than outright rejection. Indeed, the experienced solicitor for the Mother, Ms Lyndon, described the orders sought by her client as ‘consolidating’ the Father’s time, and not ‘substantially reducing it.’[4]
[3] Ms Atkins, the maternal Grandmother, supports the orders sought by her daughter, Ms Burns. See her affidavit, filed 25th June 2010, pars.15-16.
[4] Transcript (27th July 2010) p.12.
B. Orders sought
Respondent Father’s Minute of Orders Sought
Until further order:-
(1) That [X] born in 2007 live with her Father as follows:
(a) Until 15th November 2010:
(i) from 10:30am on each Tuesday until 3:30pm on Thursday; and
(ii) from 10:30am on each Saturday until 10:30 am on Sunday;
(b) From 15th November 2010 until she commences school:
(i) from 10:30 am on each Tuesday until 3:30pm on Friday; and
(ii) on each alternate weekend from 10:30am on Saturday until 3:30 pm on Sunday;
(c) Upon [X] commencing school at all time save for each alternate weekend from after school on Friday until before school on Monday when she shall spend time with the Maternal Grandmother.
Mother’s Proposed Interim Orders
1. The Father, Mother and Maternal Grandmother have equal shared parental responsibility for [X] born in 2007. (“[X]”)
2. That [X] live with her Maternal Grandmother.
3. That [X] spend time with her Father:
a. Until [X] turns 3 years of age from 4:30pm Friday until 4:30pm Sunday each alternate weekend and from 10:00am Thursday until 4:30pm on Friday each week prior to the non-contact weekend;
b. That when [X] turns 3 years of age from 4:30pm Thursday until 4:30 pm Sunday each alternate weekend and from 10:00am Thursday until 4:30pm Friday each week prior to the non-contact weekend;
c. That when [X] turns 3 years of age for an extra night three times in the ensuing year, the extra night to be added to the Father’s weekend contact to enable him to have a holiday with [X];
d. That when [X] turns 4 years of age for an extra two night three times in the ensuing year, the extra two nights to be added to the Father’s weekend contact to enable him to have a holiday with [X];
e. Thereafter in relation to school holidays, when [X] starts school for one-half of school holiday periods, and Orders 3(a) and (b) are suspended during school holiday periods; and
f. For time on special days.
4. That change-over for the child occur at Marymead.
5. That [X] spend time with her Mother as agreed between the Mother and Maternal Grandmother.
C. Background
I have already noted that parenting orders were made last year by consent that involved [X]’s young Mother, Ms Burns, [X]'s Father, Mr Caldwell, and [X]’s maternal Grandmother Ms Atkins. According to those orders, which are dated 21st May 2009, these three people share equal parental responsibility for [X].[5] Pursuant to those orders, [X] lives primarily with her maternal Grandmother and spends significant and substantial time with her Father. While in her Grandmother’s care [X] spends time regularly with her Mother, who now seems to live, on a more regular and settled basis, with her Mother, Ms Atkins.[6] To a significant degree, the settlement last year was aided by a very detailed report from Ms H, a psychologist with specialist training and experience in childhood attachment.[7] I understand that Ms H also participated in the negotiation process that led to the settlement.
[5] In the current application, no one seeks to disturb this order.
[6] For current purposes I need not traverse the earlier involvement of the Office of Children, Youth and Family Support in the life of Ms Burns. That material is on the Court file.
[7] Ms H’s Report was released to the parties on 20th January 2009.
Prior to the settlement of the proceedings last year, a litigation guardian undertook the proceedings on behalf of Ms Burns.[8] That guardian, it seems, is no longer required. Mr Ridge was then the independent children’s lawyer; he has re-entered the arena in more recent times in the same guise.
[8] Ms Burns is now aged 19 years old; Mr Caldwell is now aged 22. Thus Ms Burns was 16 years old when she gave birth to her daughter, [X].
The relationship between the three adults mentioned, and particularly between Mr Caldwell and Ms Atkins, is strained. Indeed, that strain seems to have increased in more recent times for reasons shortly to be outlined. Further, Mr Caldwell's Grandmother, who is not a party to the proceedings, has also played a not insignificant part in the matter, ostensibly in assisting Mr Caldwell from time to time. And regrettably, it would seem that both Grandmothers do not enjoy a completely happy relationship either. Indeed, the tension is expressed by Ms Atkins in very wide terms to embrace the whole of Mr Caldwell’ family. For example, in her affidavit filed on 22nd July 2010, par.12, Ms Atkins expresses her concern about [X]’s “physical and emotional well-being while in the care of her paternal family.”
To add to this scenario, there have been accusations against Mr Caldwell which allege abuse against his daughter. These accusations have been investigated by Dr P from the Child at Risk Health Unit at Canberra Hospital, as well as more recently by the Office of Children, Youth and Family Support (“OCYFS”). Both Dr P's Report, and the more recent report from OCYFS, dated 23rd June 2010, is before the Court. Among other places, Dr P's Report, dated 10th January 2010, is annexure A to Ms Atkins’ affidavit filed 19th January this year.
Because it is the more recent of the two I have mentioned, I note the following from the OCYFS Report. First, it states that the disclosures by [X] have either been previously investigated in 2009, or that [X] seems to have been coached to state certain matters. Secondly, OCYFS also noted that the report to the Department had confirmed in Court documents that [X]’s time with her Father is positive. The OCYFS Report concluded that the case was closed and that there was no current OCYFS involvement with the family.
I should note that while there was very brief mention of various allegations of risk at the brief hearing on 27th July, the primary focus was on the current, and proposed, parenting arrangements. Notwithstanding the focus at the interim hearing on the substantive parenting issue(s), it is important, in my view, that some consideration be given to the allegations against Mr Caldwell in the light of established principle concerning “unacceptable risk.”
D. Unacceptable risk
I have recently examined a number of relevant authorities in relation to “unacceptable risk” in the case of Luther & Luther.[9]
[9] (2010) FMCAfam 761.
Beginning at [43], I recorded the following jurisprudential overview:
[43] Earlier in these reasons I also noted a number of seminal cases that deal with “unacceptable risk”. The starting point for such a discussion is the High Court’s comments in M v M.[10] The High Court said:[11]
[10] M v M (1988) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).
[11] (1988) 166 CLR 69 at pp.76 & 77 [22].
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
[44] The High Court went on to make the following further observations in relation to “unacceptable risk”:[12]
[12] (1988) 166 CLR 69 at pp.77 & 78 [24] & [25]. The basal principle from M v M in relation to “unacceptable risk” set out in [25] of that judgment has most recently been referred to by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at p.593 [22]. See also the recent Note by Professor Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Journal of Family Law 276-282
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access)[1986] FLC ¶91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 BCLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) [1987] 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[45] I move to the more recent discussion by the Full Court in the joint judgment of Bryant CJ and Kay J in Napier v Hepburn. At [84], and again at [91], their Honours said:[13]
[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated....
[46] Likewise in Johnson & Page, the Full Court (May, Boland & Stevenson JJ) examined at length the proper approach to issues concerning “unacceptable risk.” The Court quoted with approval the extended discussion in Napier v Hepburn on “unacceptable risk” and the course that should properly be pursued by a court in such an assessment, including the detailed citation (with obvious approval) of the dissenting judgment of Fogarty J in N v S.[14] For current purposes it is sufficient to note the following series of questions posed by Fogarty J in N v S, as cited by the Full Court in Johnson & Page at [66]. The relevant part of that judgment is as follows:[15]
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
[13] Warnick J agreed, at [113], with this analysis of the joint judgment in upholding the appeal.
[14] (1995) 19 Fam LR 837 at pp.859-861.
[15] See Johnson & Page (2007) FLC ¶93-344 at p.81,889 [66]. The same extended quotation from N v S is located in Napier v Hepburn (2007) 36 Fam LR 395 at p.406 [56]. Napier v Hepburn’s discussion of N v S was also considered and supported by the further Full Court decision in Potter v Potter (2007) 37 Fam LR 208 at p.231 [124] & [125].
[47] I have previously noted that the Full Court in Johnson & Page, at [68], [71] and [72], expressly endorsed the comments of the Hon J. Fogarty in his article, “Unacceptable risk – A return to basics” (“the Fogarty article”).
...
[49] ... point 1 from the Fogarty article refers to the statutory and self-evidently fundamental cornerstone of any order involving a child, namely that the decisive issue is and always remains the best interests of that child.[16] As Fogarty rightly says: “All other issues are subservient [to the best interests of the child].”[17]
[50] Fogarty’s second point is as follows: “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[18]
[51] Fogarty’s fifth point states: “The concentration of these cases should normally be upon the question whether there is an unacceptable risk to the child.” Point six says: “The onus of proof in reaching that conclusion is the ordinary civil standard.”
[52] ... point seven observes: “But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.” ...
[53] For the sake of completeness in relation to the standard of proof, I note the Full Court’s discussion of s.140 of the Evidence Act 1995, in the light of relevant High Court authority. In Johnson & Page, at [69] – [70], the Court said:
[16] See s.60CA of the Act.
[17] “Unacceptable risk – A return to basics” 20 AJFL at p.266.
[18] Ibid – emphasis added.
[69] Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
[70] We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
I have already remarked that the Court has before it material from Dr P, Ms L, and OCYFS. In the light of that material, what is in the affidavit material (albeit untested as yet), and what is noted later in these reasons, the Court needs to address as best it can in the circumstances the basic questions, thus: ‘what is the nature of the risk’ and ‘what is the degree of the risk’ of [X] spending time with her Father?
Couched in those terms, the Court also needs to recall the following (summarily stated): (a) the parties (Mr Caldwell, Ms Atkins and Ms Burns) reached agreement by consent last year that [X] spend significant and substantial time with her Father; (b) it may at least be inferred from those orders that there were no concerns for [X] spending time with her Father; (c) although Dr P counsels a very cautious approach on this subject (to put it in the most neutral of terms), both Ms L and OCYFS have no such concerns. As noted below (when I deal with Ms L’s Report in more detail), the issue essentially before the Court relates to the discord between Mr Caldwell and his family, on the one hand, and Ms Atkins, on the other.
In my words, Dr P notes (at p.4 of her Report) that there is no physical evidence of abuse, but expresses concern for [X]’s articulation of genital soreness to a number of relatives shortly after returning from her Father’s care. Notwithstanding this Report, and in addition to Ms L’s Report and that from OCYFS, Ms Burns (and in turn Ms Atkins) seeks to retain the previously made order for equal shared parental responsibility between the parties, and that [X] spend substantial and significant time with her Father.[19]
[19] In addition to the many reports before the Court, annexed to Mr Caldwell’s affidavit filed on 21st January 2010 (Annexure D) is a short, hand-written letter from Dr Y, dated 21st January 2010, which attests to [X]’s well-being.
On the evidence currently before the Court, in my view, the nature of the risk (physical abuse) remains at such a significant level of generality as to suggest that the Court should be slow and cautious in accepting its veracity.[20] Likewise, given the matters already noted, and in particular the Mother seeking that [X] spend significant time with her Father, if [X]'s Mother (and in turn her Grandmother) appear to have no concerns in this regard, in my view, the Court should likewise adopt more of a ‘watching brief’ approach rather than curtail [X]’s time with her Father. In short, given the nature and level of evidence available to the Court, the risk to [X] spending time with her Father is extremely low if not non-existent. Put in the more usual terms, in my view, there is no unacceptable risk in relation to [X] spending time with her Father.
[20] I simply note, without comment, but for the sake of completeness that in Ms Atkins’ affidavit filed on 22nd July 2010 (par.3) she confirmed that her application for further legal aid funding to pursue further investigation of [X]’s behaviour in the context of Mr Caldwell’ care has been rejected. I also note, for ease of reference, Annexures E & F to Mr Caldwell’s affidavit, filed on 18th June 2010, which are copies of letters from OCYFS to Mr Caldwell, dated 31st July 2009 and 1st January 2010 [sic], which confirm the Department’s view that [X] is not at risk in her Father’s care.
E. Ms L’s Report
I have previously noted that Ms L, a highly experienced family consultant, produced a Report, dated 29 January 2010. On the principles expressed by Warnick J in SPS & PLS,[21] that report should be taken as being part of the evidence before the Court. In particular, I set out below paragraphs 19 to 22 of that Report.
[21] (2008) FLC ¶93-363.
19. In regards to Mr Caldwell, Ms Burns remarked “I don’t talk to him at all”. With respect to the allegations concerning Mr Caldwell, she informed “I wouldn’t expect Mr Caldwell to do anything untoward to [X]”. She added “I’ve heard he’s a good Dad through other people”.
Summary
20. It is apparent that [X] is a much loved child and that her care is conducted with the best intentions of all of her carers. It is a pity that, across her two families, the most significant adults in her life are in conflict. The tension among the adults might find some relief if changeover were, in the interim, to occur at a professional change-over centre such as at Marymead or Coastwide. Both provide changeover facilities. The latter agency also provides transport, if required.
21. With respect to future care arrangements for [X], she might now be of an age when she can better cope with the absence of her primary carer, Ms Atkins, for longer blocks of time than is occurring with the present arrangement. If [X] were to, on a fortnightly basis, spend time with her father for, say, a block of time progressing to Thursday to Sunday in one week and, perhaps, over night on Thursday in the second week with the remainder of time spent with her maternal grandmother, such an arrangement might better provide her with the opportunity to settle in each of her homes and, in the process, to gain a greater sense of stability. Such an arrangement would have the added advantage of reducing the frequency of changeovers. I understand [X]’s time with her mother, Ms Burns, will remain fluid and, for the near future, mostly in the presence of Ms Atkins.
22. There is no doubt that the allegations and counter allegations will remain an issue for Mr Caldwell and Ms Atkins for some time to come. It might benefit these adults to seek individual counselling to assist with moving forward to better co-operate in the care of [X]. Should the adults continue to feel concerns regarding [X]’s care across her homes, they might consider the professional assistance of a play-therapist as a gentle and unobtrusive means of assessing her well-being. Such a step might, however, be best considered in consultation with the Care and Protection Unit.
I note especially Ms Burns’s views expressed to Ms L that:
I wouldn’t expect [Mr Caldwell]… to do anything untoward to [X].
And:
I’ve heard he’s a good Dad through other people.
No less important are the comments from Ms Atkins, recorded by Ms L at par.12 of the Report: “Ms Atkins informed that, while she remained mindful of Dr P’s comments after a medical examination, she accepted the findings of the Care and Protection Unit that there were no concerns in relation to the allegations.”
In my view, the comments recorded by Ms L from Ms Burns and Ms Atkins are not insignificant observations. According to Ms L’s recent Report, and in the competing affidavits from the respective contestants before the Court, [X] is clearly a vibrant young girl who thus far seems to be thriving on her very diverse cultural and family milieu, which includes Hungarian, Koori and Spanish dimensions. The evidence suggests that she speaks all three languages as well as English. Clearly she is a very bright and highly stimulated child.
F. Issues in Contest
The essential issue for resolution, as I have said, is whether Mr Caldwell should have any increased time with his daughter, especially in the current circumstances, where there is a significant level of contest between Mr Caldwell and [X]'s Grandmother, Ms Atkins, who is her principal carer. There is no proposal, nor even a suggestion, that there should be any other matter addressed from the Consent Orders of 2009, including equal shared parental responsibility.
In this regard, I note two matters from Ms Atkins’ comments to the Court on 27th July: first, she observed that the adults should just ‘get on together’ for [X]’s sake.[22] Respectfully, I agree with her. Secondly, in answer to a question from me which was to the effect that the allegations against Mr Caldwell may be based, in part, on a misunderstanding of two very similar sounding words, one in Hungarian (“cuny [pronounced “soony”] – which means vagina in Hungarian) and the other in Koori (“Guuni/gunni” – which means “bowel movement”, and which, according to Mr Caldwell, at her young age, [X] pronounces “cuuni/cunni”), but which clearly have completely different meanings, she readily agreed.[23]
[22] See the discussion at Transcript (27th July 2010) p.6.
[23] See Transcript (27th July 2010) p.6.
Although now recently unrepresented, Ms Atkins impressed me with her candour and quiet, resolute determination to place [X]’s interests above the contest between the families.
Ms Lyndon rightly raised the issue of the nature and level of contest between the parties and various studies in this regard, which caution against the risks to children being embroiled in such conflict.[24]
[24] Transcript (27th July 2010) p.11.
In another recent decision I have detailed six significant, lead studies in relation to the risks for children embroiled in parental and related conflict, as well as four further studies in relation to parenting, from leading international scholars in relevant fields of jurisprudence.[25] By these references I intend to indicate that I am very much aware of both the research, and the consequences to which it testifies, regarding the impact on children of conflictual parental relationships.
[25] See Capps & Gates [2010] FMCAfam 756 at [3] and the notes thereto.
In addition to Ms L’s recommendations, I also note that the independent children’s lawyer supports the increase in time sought by Mr Caldwell.
G. Legislative Pathway
Formally, there were few submissions in relation to this central pathway. The absence (relative or otherwise) of submissions, even in cases such as here where the issue to be resolved is of extremely narrow scope, does not absolve the Court from addressing, as best it can in the circumstances, the prescribed pathway.[26] Accordingly, to frame the issues to be determined, I respectfully (and gratefully) adopt the following summary discussion of the relevant statutory and jurisprudential principles by Brown J in Mazorski v Albright. At [3] – [6], her Honour said:[27]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[26] Cf. the recognition by the Full Court of the often circumscribed nature of interim proceedings: Goode v Goode (2007) 36 Fam LR 422 at p.445 [82(d)].
[27] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations in this regard. Her Honour’s remarks are important to consider in the context of an application, such as here, for change – however modest – to parenting orders. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[28]
[28] Brown J’s remarks here were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65DAA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
H. Resolution
As I have already remarked, the opposition to any extra time for [X] to spend with her Father stems primarily from concerns about the possible impact on her of the conflict between Mr Caldwell and Ms Atkins. Ms L records that Ms Burns essentially has little or no contact with Mr Caldwell. Accepting readily the research in relation to the impact of parental conflict on children, there are three matters that seem to me to be evident at this stage.
First, in none of the reports is there much, or any, evidence that [X] is doing anything other than extremely well in the current arrangements. Indeed, the report from Ms L confirms how bright and engaging she is, and equally how she is a “much loved child”. This care is conducted:
…with the best intentions of all her carers.
The report from Dr P, in my view, does not cast any doubt on this assessment. Her report was focused, understandably and properly so, on the specific aspect of certain allegations.
Secondly, notwithstanding acknowledged conflict between two of the most significant adults in her life (her Father and Maternal Grandmother), Ms L recommended that because [X] is now at an age where she can cope better with being away from her primary carer, there could be an increase in time to certain specified blocks of time. This, she observed, would also minimise the number of changeovers and therefore the risks associated therewith. The independent children’s lawyer made submissions to similar effect.[29]
[29] See, for example, Mr Ridge’s submissions at Transcript (27th July 2010) p.9.
Thirdly, Ms L also recommended the changeovers take place at a neutral venue such as Marymead or some other contact centre. I agree. This should assist in reducing the opportunities for the main protagonists to encounter each other.
Finally, of the various matters to be considered under s.60B(1), (2) and (3), and particularly under s.60CC(2) and (3), the most relevant considerations, in my view, are those that relate to [X]’s time with Mr Caldwell, and her meaningful relationship with her Father on the one hand, and the respective parenting capacities of the respective adults involved on the other. In addition to the protective responsibilities of the Court highlighted by s.60B(1)(b) and s.60CC(2)(b), formally the relevant subparagraphs of s.60CC(3) that are especially relevant in the current circumstances, it seems to me, are subparagraphs (b), (c), (h) and (i).
In particular, I draw attention to the importance of [X]’s aboriginal heritage and culture, without excluding or diminishing the heritage of her Mother’s side of the family. It may be, for example, that some formal input from a relevant aboriginal counselling or related therapeutic agency, as well as from specialised services from Marymead as occurred last year, are needed to assist the parties here. I note here Ms Atkins’ helpful comments/submission in which she encouraged that Mr Caldwell’s “committed indigenous worker” may be able to consult with Dr B to assist in the negotiations between the parties.[30] I specifically request that the independent children’s lawyer, Mr Ridge, make these inquiries and advise the Court on the next occasion of the result of them.
[30] See Transcript (27th July 2010) p.6.
I have previously observed that, at the interim hearing, no one sought to challenge or to alter the existing orders in relation to equal shared parental responsibility. Nor do I at this time. Similarly, (a) because it was not addressed, (b) nor was there any challenge to the previous orders conforming to the requirements of s.65DAA, (c) because the proposal before the Court only slightly varies those orders, and (d) especially because of Ms Atkins’ very common-sense and resolute approach, in my view, the proposal from Mr Caldwell does not fall foul of s.65DAA(5) – sub-paragraphs (b) and (c) in particular.
Difficulty of implementing orders, as submitted here, is different to outright opposition or defiance to comply with them. The parties have once negotiated, with assistance, a very significant set of orders for [X]’s well-being and best interests. Ms Atkins now proposes that, notwithstanding some recent history of difficulty, some further ‘assisted negotiation’ should proceed. The experienced independent children’s lawyer proposes similarly. And, most importantly, by all reports, [X] is doing extremely well. If one stressor, such as “change-overs” can be addressed, such as through a neutral venue, and also, perhaps, with third-party assistance, one might hope, as Ms Atkins said that “both parties ... agree to work in the best interests of [X]....”[31]
[31] Transcript (27th July 2010) p.6.
For the above brief reasons, and particularly because of Ms L’s recommendations, supported by the independent children’s lawyer, in my view it is in [X]’s best interests that orders be made as sought by Mr Caldwell. There should be an additional order that changeovers be at a recognised contact centre. Formally, I make those orders.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Neville FM.
Date: 2nd September 2010
Annexure “A”
FAMILY LAW ACT 1975
ORDER
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CAC 689/08
AT CANBERRA
BETWEEN
MR CALDWELL
(Applicant - Father)
AND
MS BURNS
(Respondent 1 Mother)
MS ATKINS
(Respondent 2 Maternal Grandmother)
Dated this 21st day of May 2009
UPON APPLICATION to the Court and by consent IT IS ORDERED:-
That final orders, declarations and notations be made in terms of the attached document entitled “Terms of Settlement”, marked as “Exhibit 1” as attached hereto and placed on the Court file.
By the Court
Federal Magistrate Neville
FAMILY LAW ACT 1975
TERMS OF SETTLEMENT
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CAC 689/08
AT CANBERRA
BETWEEN
MR CALDWELL
(Applicant - Father)
AND
MS BURNS
(Respondent 1 Mother)
MS ATKINS
(Respondent 2 Maternal Grandmother)
BY CONSENT IT IS ORDERED:
That the Father, the Mother and the Maternal Grandmother have equal shared parental responsibility for the child [X] (“[X]”) born in 2007.
That [X] live with the Father and the Maternal Grandmother as follows:
With the Father:
a.from 10:30am until 3:30pm on each Tuesday, Wednesday, and Thursday.
b.on each Saturday from 10.30 until 3:30pm until 22 August 2009;
c.from 22 August 2009 until 15 November 2009 on each Saturday from 10.30am until 6.30pm;
d.from 15 November 2009 from each Saturday at 10.30am until Sunday at 10.30am.
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
With the Maternal Grandmother:
e.at all other times;
That the Mother spend time with [X]:
a. on an unsupervised basis for up to 2 separate periods of 3 hours per week until 15 November 2009;
b. thereafter for 1 additional unsupervised overnight period per week provided that such time is spent at the home of the Maternal Grandmother;
c. at any other time provided that the Maternal Grandmother or a Maternal Aunt is present.
In 2009 [X] shall spend time with the Father on Father’s Day from 10.30am until 5:30pm in lieu of Saturday contact that weekend. In 2010 the Father may elect to have [X] on the Fathers Day weekend from 6pm on Saturday until 6pm on Sunday rather than from 10.30am Saturday to 10.30am on Sunday and is to notify the Maternal Grandmother of his choice in this regard 14 days in advance.
[X] shall spend time with the Mother and/or the Maternal Grandmother on Mothers Day.
On [X]’s birthday she shall spend time with the Father as agreed and failing agreement from 10.30am until 3.30pm. If [X] would not otherwise spend time with the Maternal Grandmother and the Mother on that day the Father will return [X] to them as agreed and failing agreement from 10.30am until 3.30pm. In 2009 on [X]’s birthday and on the Father’s birthday [X] shall be in the care of the Father on those days instead of the immediately preceding day.
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
[X] shall spend time with each of the parents, the Maternal Grandmother and the Paternal Great-Grandmother on that person’s birthday as agreed and failing agreement from 10.30am until 3.30pm.
That if the Maternal Grandmother is not able to personally care for [X] for periods of more than 5 hours she may permit the Mother to care for the child if that time falls during the unsupervised times referred to in Order 3 herein and otherwise shall give the Father first option to care for [X].
The changeover for [X] shall be effected by the Father and the Maternal Grandmother and in the event that either is unable to do so then the Father’s Grandmother, Ms C or a Maternal Aunt or another agreed person shall effect the changeover.
That the parties shall ensure that [X] is enrolled in an Australian Capital Territory indigenous pre-school of the Father’s choice (which [X] may attend during her time with the Father) and that [X] is enrolled at [omitted] pre-school (which [X] may attend during the time [X] spends with the maternal grandmother). The Father shall be responsible for the costs (if any) of [X]’s attendance at indigenous preschool. To the extent possible the parties will ensure that [X] is able to attend at both of those pre-schools.
That the Father and the Maternal Grandmother are each entitled to choose a General Practitioner to treat [X] while she is in their respective care and that at this time the Father has chosen the Winnunga Medical Centre and the Maternal Grandmother has chosen the Hawker Medical Centre. The Maternal Grandmother shall be responsible for arranging and facilitating [X]’s immunisation and shall inform the Father immediately when that has been facilitated.
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
Each party shall ensure that all of [X]’s treating General Practitioners are informed about and authorised to exchange information with the other treating General Practitioner.
That the Registrar of the Federal Magistrate’s Court shall forthwith execute all documents necessary to ensure that the Father’s name is registered on [X]’s birth certificate.
That the parties shall each be restrained from removing [X] from the ACT/Queanbeyan surrounds without first notifying the other party of their intention to do so.
That the parties shall each be restrained from changing [X]’s place of residence from the ACT/Queanbeyan surrounds without the written agreement of the other party or further order.
That the parties shall each be restrained from removing [X] from the Commonwealth of Australia without the written approval of the other party or further court order.
That the parties shall notify each other in writing if they intend to change [X]’s usual place of residence with each of them.
The Father shall use his Grandmother’s home as the home base when [X] is in his care and he shall exercise his overnight time with [X] pursuant to Order 2 at the residence of his Paternal Grandmother unless otherwise agreed in writing between the parties.
That [X] shall have her own bedroom in each party’s residence.
That the parties shall notify each other in writing prior to any specialist medical appointment arranged for [X] so that all parties can attend that appointment.
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
That each party shall notify the other in writing of any non specialist medical or health care appointments attended by [X] and the result of that appointment within 7 days.
That each party shall provide a written authority to each treating medical and/or child health practitioner permitting information about [X] to be given to each other party.
That if [X] is involved in a medical emergency the party who is with her at that time shall notify the other parties as soon as practicable thereafter.
That the parties are each restrained from consuming illicit drugs for 12 hours before and during the period that they have the care of [X]. The parties are each restrained from consuming alcohol for 12 hours before and during the period that they have the care of [X]. It is noted that this order is made without any admission by any party as to its necessity.
The parties agree that it is important for [X] to know that the Mother is [X]’s mother and the parties will each do all such things as are appropriate to assist [X] in that understanding and shall ensure that no other person is known as [X]’s mother.
The Father shall be present at all times when [X] is to live with him pursuant to these orders.
That within six weeks prior to [X] turning 3 years of age the parties shall attend on Ms W, and if she is not available another family consultant, at the Federal Magistrates Court for the purpose of reviewing these orders.
The parties note recommendation 6 on page 35 of Ms H’s report dated 24 December 2008. It is the parties agreed wish that [X] be given the best opportunity to enjoy a settled routine and that any changes occur in as smooth a manner as possible. The Father shall return [X] to the Maternal Grandmother if she is distressed and he is not able to settle her.
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
That the Father will undertake a parenting course.
That the parties will attend the ARCK program.
That the parties have liberty to relist the matter in respect of any matters arising from the review conducted by Ms W pursuant to Order 27 hereof.
AND IT IS NOTED
(a)The Maternal Grandmother may seek to have a period, not exceeding one week, away from Canberra with [X] at such times as agreed between the parties;
(b)The Father shall ensure that [X] is put down for a sleep each period that she is with him and that the sleep is not unduly disrupted by visitors;
(c)That the parties will carefully monitor [X]’s response to these changes to her arrangements, and the Father and Maternal Grandmother will communicate directly with each other regarding [X]’s response and well being, and not do so through any other person;
(d)The Father volunteered to do a parenting course.
| Dated: 21 May 2009 We consent to the making of orders by the Court in the above terms |
Signed by the Applicant Father Signed by the Respondent Mother
Signed by the Litigation Guardian for the Respondent Mother
Signed by the Maternal Grandmother Signed by the Independent Children’s Lawyer
0
6
0