B & O & M
[2005] FMCAfam 379
•2 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & O & M | [2005] FMCAfam 379 |
| FAMILY LAW – Children – residence – unilateral relocation – best interests – wishes of children aged 9 and 7 – separation of siblings – family violence – attitude to responsibilities of parenthood – contact to grandparents. |
| Family Law Act 1975 – ss.60B, 65E, 68F |
| G & G (1981) FLC 91-042 Dearman v Dearman (1908) 7 CLR 549 B and B: Family Law Reform Act (1997) FLC 92-755 A v A (2000) FLC 93-035 H v W (1995) FLC 92-598 R & R: Children’s Wishes 25Fam LR 712 H & H (1995) FLC 92-599 In the marriage of J D & B G (1994) 18 FLR 255 In the marriage of Patsalou (1994) 18 FLR 426 |
| Applicant: | P S B |
| Respondent: | B P O |
| Intervenors: | S & P M |
| File Number: | DNM465 of 2004 |
| Judgment of: | Brown FM |
| Hearing dates: | 29 & 30 June 2005 |
| Delivered at: | Darwin |
| Delivered on: | 2 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms H |
| Solicitors for the Applicant: | S & A |
| Respondent: | In person |
| Intervenor: | In person |
ORDERS
That the children W B M born 27 December 1995 and Z S P M born
1 June 1998 live with P S B (hereinafter referred to as “the father”).
That B P O (hereinafter referred to as “the mother”) have contact to the aforesaid children as follows:
(i)For four weeks during the mid year N T school holidays each year;
(ii)For three weeks during the N T end of year school holidays at an exact time to be agreed between the parties and failing agreement to be the second half in the holiday commencing in December of 2005 and each alternate odd ending year thereafter and the first half commencing in December 2006 and each alternate year thereafter;
(iii)At any other times and on any other conditions as may be agreed between the parties;
(iv)By telephone each week with the mother to telephone the children each Wednesday at 6.30pm N T time on (**) ** ****** or such other number as may be provided;
(v)By emails.
That S M and P M (hereinafter referred to as “the grandparents”) have contact to the aforesaid children during school terms, whilst the grandparents live in N, each week from after school on Friday until 4.00pm the following Saturday with the grandparents to collect the children from school and return them to the father at the G Y C and for four days during each of the end of first term and third term holidays calculated to commence at 6.00pm on the last Friday of term.
That the parties share equally the cost of the children’s travel for contact to the mother in C and to this end the mother be responsible for booking the children’s necessary air tickets for travel between N, C and return and advise the father of these arrangements in writing 21 days prior to the date scheduled for such travel.
That the mother obtain the cheapest available economy air tickets for the travel as specified in Order 2(i) and (ii) above and the father provide her with his one half of the necessary travel costs to a bank account to be nominated by the mother 7 days prior to the children being scheduled to return to N.
That each of the parties be and are hereby restrained from denigrating the other parent, or discussing any aspect of these proceedings and the judgment delivered herein, in the presence or hearing of the children.
That the mother and father each provide the other with details of their residential and postal addresses and mobile and landline telephone numbers within 48 hours of the date of these orders and notify the other within 48 hours of any change of such particulars.
That the parties each be responsible for making day to day decisions concerning the care, welfare and development of the said children when they are in each of their respective care.
That the mother have contact to the children on each of their birthdays, her birthday, Mother’s Day and on Christmas Day in the event that the children are not with her.
That all applications herein be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM465 of 2004
| P S B |
Applicant
And
| B P O S and P M |
Respondents
REASONS FOR JUDGMENT
Introduction
This is a difficult case, which creates many problems, to which there are no easy solutions. It concerns future arrangements for the care of two children, W B M born 27 December 1995 and Z S P M born 1 June 1998, particularly where and with whom the two children will live.
The parties to the proceedings are the persons who have been instrumental in providing for the children’s care up to this stage of their lives. They are currently in hopeless deadlock as to what arrangements are likely to be best for W and Z in future. Accordingly, it falls to this court to make a decision between the competing applications of the parties concerned. In making that decision, it is W and Z’s best interests which are paramount and the court must decide which of the parties’ proposals is most likely to advance those best interests.
The applicant in the proceedings is P S B. He is Z’s biological father but is not related to W in terms of shared blood. W has never met his biological father, who has taken no part in these proceedings. Although the parties vehemently disagree about the nature and the quality of the relationship between Mr B and W, it seems clear that Mr B has played a significant role in W’s life and is the closest “father figure” W has ever known. Mr B wishes both children to live with him in future in N, a remote township in the north east of A in the N T of Australia. W and Z have been living with him since early February of 2005.
The respondent in the proceedings is B P O. She is the mother of both W and Z and of their older brother D M born 5 October 1993. Until the middle of October 2004, she too lived in N. At this time, in circumstances of great controversy between the parties, she left N and moved interstate with D, W and Z.
Although Mr B does not believe it to be the case, it is Ms O’s position that the father of both D and W is T R, who lives in S, a suburb of M in V. She concedes that Mr R has played little, if any part, in either D or W’s life to date. Ms O is currently living in H B, near C in Q, with her husband, P O and D. She wishes W and Z to live with her in Q and be reunited with D as soon as possible. She regards current arrangements for the care of the two children as being woefully inadequate and potentially injurious to their health.
For his part, Mr B regards Ms O as having significant problems with alcohol consumption. He also believes that the relationship between Ms O and Mr O is one characterised by physical violence, to which both W and Z have been exposed in the past. Finally, he believes that Ms O and Mr O and members of their family are implacably opposed to him having any meaningful involvement with either W or Z. In such circumstances, it is his position that the best interests of the children will be served by them continuing to live with him in N.
The other parties to the proceedings are S and P M. They are the maternal grandparents of D, W and Z. They are currently living in N, where they have lived for the past twenty years or so. However they are planning to move to H B in the latter portion of this year. They own the house in H B in which Mr and Ms O are currently living. Mr and Mrs M are strongly supportive of the position adopted by their daughter in the proceedings.
At a late stage in the proceedings, Mr and Mrs M successfully applied to be joined as parties in the proceedings. In the short term, whilst they continued to live in N, they seek formal orders in respect of their contact to W and Z. They hold an extremely negative view of Mr B, whom they regard as being anti-social and motivated by malice towards them and their daughter in these proceedings.
Mr and Mrs M concede that Ms O has had difficulties in the past, particularly in regards to the consumption of alcohol. Although it is their view that Ms O is the more competent parent of the two, if it is the court’s view that she should not be entrusted with the responsibility of providing a residence for W and Z in future, they regard themselves as a better option than Mr B in this regard and accordingly, in these circumstances, would seek a residence order in their favour. Mr B is dubious about the involvement of Mr and Mrs M in these proceedings. He views their application for residence of W and Z as being essentially a sham designed to ensure that the children are ultimately returned to the care of the mother.
The proceedings before me were complicated by the fact that neither Ms O nor Mr and Mrs M were legally represented in them. In addition, neither Ms O nor Mr and Mrs M were able to attend court in person in D. Arrangements were made for them to attend court by means of a video link from C and N respectively. Although the technology concerned was advanced and performed with few difficulties, I concede that this was not the best way for the proceedings to be conducted and was alienating and upsetting for the parties concerned.
The litigation itself was categorised by a high level of mutual antipathy and hostility. The various parties concerned can see little good in the others and each is quick to criticise and enlist others to criticise. The proceedings were coloured by innuendo, unsubstantiated gossip and hearsay.
In order to assist the court with deciding this difficult matter and provide it with evidence independent of each of the parties concerned, a family report was prepared. This report was prepared by S R, an experienced family and child counsellor and psychologist. He travelled to N and interviewed both W and Z. As a result of these interviews, Mr R formed the view that both children but particularly W wished to continue to live in N with Mr B.
Mr B lives on a houseboat, which is moored in the sea off shore from the G Y C. His living circumstances are unorthodox when compared to those of the vast majority of Australian citizens. It is Ms O’s position, supported by Mr and Mrs M, that Mr B’s choice of accommodation for children of the ages of W and Z shows scant insight into the needs of such children. It is their position that the houseboat poses a serious threat to the life, health and safety of both children, not only from drowning but also from crocodile attack.
In the conclusion to his report, Mr R wrote as follows:
“In considering all the issues involved in this case I am of the opinion that the father is capable of providing a stable and nurturing environment for the children. I believe his parenting is good enough to suggest that a change of residence is not warranted in the current circumstances.
I believe that the children should have contact with the mother for school holiday periods and that the parents contribute equally to the cost of this contact.”[1]
[1] See family report at paragraphs 62-63
Both Ms O and Mr and Mrs M believe that W and Z have been primed by Mr B in respect of their purported wish to remain living with Mr B. They believe that Mr R’s report is seriously flawed and his recommendations without basis in fact. They also believe that Mr B has been able to “pull the wool” over Mr R’s eyes. Mr R did not visit Mr B’s houseboat. They believe the photographs of the houseboat, which they have tendered into evidence, speak for themselves and indicate clearly it provides an unsuitable home for W and Z.
Mr B urges the court to accept Mr R’s report and its recommendations. It is his case that both W and Z enjoy living on the houseboat and have close ties with school mates and friends at N Primary School and the yachting community on the G P. He asserts that both W and Z, although young, are competent sailors and swimmers and his unusual home circumstances pose no threat to them.
Background
Mr B and Ms O have previously been involved in proceedings in this court with one another. Those proceedings concerned interim arrangements for the care of W and Z. Orders were made in those proceedings on 22 December 2004 and reasons for judgment were published by me.[2] These current reasons for judgment are designed to be read in conjunction with the reasons earlier published.
[2] See B & M [2004] FMCAfam 745
Mr B was born on 6 April 1961 in B, Q. He grew up in the B area and completed Year 11 at school. After leaving school, he obtained qualifications in the sugar refining industry. He has lived in the N T, predominantly N, for the last ten years. He is currently employed by
Y B E as a machine operator. Mr B’s interests in life include boating; sailing; fishing; spear fishing; and diving.
Ms O was born in B in S on 12 March 1973. She had an adventurous childhood. She describes her parents as being photo journalists. She spent a large portion of her childhood, from the ages of three to fifteen, living on a thirty eight foot cruising yacht. Her father was in charge of this yacht, which he piloted on several long haul and intercontinental voyages. It seems that both Mr and Mrs M are experienced sailors. Ms O’s family came to live in N approximately twenty years ago. Both W and Z were born at the G D H.
Ms O describes herself as “a stay at home mum”. However for the past fifteen years, Ms O has worked as a bar manager at the W H in N. She acknowledges that some eight or nine years ago she had problems with intravenous drugs, particularly amphetamines. She attributes her use of these drugs to the nature of the community in N, which is young and transitory and without access to extensive resources for entertainment and recreation - the town itself being largely created to service the mining industry. However, it is her position that, after a period of treatment, she overcame her drug problems and has not used any illicit substances for many years.
However, Ms O also concedes that she has had significant problems with her level of alcohol consumption in the past. For the same reasons as outlined above, she categorises N as being a hard drinking town. Given her occupation, it is her view that she herself was particularly susceptible to the lure of alcohol in N. Although it cannot be said that Ms O is a stranger in N, it is her position that, in the latter part of 2004, she began to feel increasingly unhappy in the town and aware of its lack of facilities, particularly educational and medical ones for her children. She also wished to remove herself from the social circle in which she had moved in N for many years, which was largely centred on the hotel and alcohol consumption. In short, she wanted to move away from N because she believed there were better opportunities for herself and D, W and Z in a larger centre.
These wishes coincided with Ms O meeting Mr O. Mr O is from a rural community fifty kilometres from B. He has a history of working in the security industry. He came to N to be a security officer at the W H, where he met Ms O in June of 2004. They formed a serious relationship together in October of 2004 and married in Q in January of 2005. Mr O has no children of his own.
Ms O and Mr B lived together in N between August of 1997 until they separated – in difficult circumstances – in December of 2002. Mr B and Ms O lived together, with D, W and Z at premises rented from the Housing Commission of the N T at L C, N. After they separated, Ms O continued to live in the premises with the children concerned and Mr B moved to live on a vessel moored at the G Y C. Later Ms O formed a relationship with a gentleman, Mr G M. Ms O and Mr M ended their relationship shortly before Ms O began to live with Mr O.
The birth certificates of both W and Z have been filed in these proceedings. T D R is entered as being the father of W. Mr B is entered as being the father of Z. W was about eighteen months old when Mr B and Ms O began their relationship. He was aged about seven when it concluded. In her evidence, Ms O indicated that W had never met Mr R, although he did telephone him from time to time. Mr B does not accept Mr R is W’s father but accepts that he (Mr B) is not W’s biological father either. However, it is Mr B’s position that in the five or so years of his relationship with Ms O he became the only father figure W had ever known and, as Z’s biological father, naturally assumed this role from the date of Z’s birth. He wished to continue in this role, with both W and Z, in the period after he separated from Ms O. He concedes that his relationship with D was a more tenuous one.
One of the major areas of dispute between the parties is the nature of the relationship between Mr B and W and Z in the period after the parties’ separated and the extent of his contact to them. Mr B asserts that his relationship to the children was a close one, which developed further during this period. He asserts that he regularly took both W and Z fishing and sailing and they spent regular periods of time, during weekends, on his houseboat. Ms O asserts that Mr B’s contact to W and Z was desultory and occurred only on an ad hoc basis. It is also Mr B’s case that he became increasingly concerned about Ms O’s behaviour in this period, particularly after she had commenced her relationship with Mr O. He believes that the care of the children suffered in this period and became of concern to the authorities at the
N P S.
The various issues between Mr B and Ms O came to a head in October of 2004. At this stage there is no dispute between the parties that Ms O clandestinely left N with D, W and Z, in the company of Mr O. It is Ms O’s position that her personal circumstances compelled her to leave N and she was going to a better life for herself and the children. She asserts that she did not tell Mr B of her plans because she feared that there would be a violent scene between her and Mr B. Mrs M has deposed that she and her daughter were unaware of any necessity to seek either Mr B’s or the court’s approval to move the children away from N in this fashion.
It is the case that there were no orders put in place regarding arrangements for the children’s care, in the period following the end of the defacto relationship between Mr B and Ms O. It is a strong plank of Ms O’s case that Mr B should be taken to have been satisfied as to the quality and competence of her parenting because he did not seek such formal orders in respect of W or Z. I accept that arrangements for the care of the children concerned did proceed very much on an ad hoc basis, in the period following the parties’ separation and that Mr B did not formally voice any concerns about Ms O’s care of the children.
However, the manner in which Ms O proceeded in October of 2004 clearly indicates that she had strong grounds for believing that her wish to move W and Z away from N would meet strenuous opposition from Mr B. She obviously wished to present him with a fait accompli in respect of the move, which she thought he would be unable to change. She gave no thought as to how W and Z would maintain their relationship with Mr B and gave little regard to their feelings or Mr B’s, whom she treated with contempt.
Ms O was aided in her plans to leave N by Mr and Mrs M. They refused to provide information about their daughter’s whereabouts and obstructed Mr B’s attempts to gain information about the children.
I have strong grounds for believing that Ms O placed the importance of pursuing her comparatively new relationship with Mr O above the emotional needs of both W and Z.
Mr B was told by Ms O, on the weekend commencing 9 October 2004, that she was taking the three children camping with her. On 11 October 2004, Mr B discovered that none of the children had attended school that morning. Later he discovered that Ms O had vacated her premises in N. He wasted no time in commencing these proceedings, which were filed in D on 13 October 2004. Mr B’s solicitor contacted Mrs M about the matter. Mrs M was unwilling to provide information about her daughter’s whereabouts. Ultimately, Mr B’s application was served on Mrs M. His application was made returnable on 26 October 2004.
On this date, a solicitor appeared on Ms O’s behalf by telephone and requested time to file answering material. The proceedings were adjourned until November 2004. What occurred next was described in the earlier reasons for judgment:
“The competing applications came on for hearing before M FM on 10 November 2004. Both parties were represented by counsel at the hearing. Her Honour ordered that Z only be returned to live in N on or before 21 November and in the event that the mother herself chose to live in N that Z should live with her and have regular weekend contact with the father. The orders were silent about arrangements for W and D. The matter was then adjourned until 20 December for further consideration of interim issues and directions. The parties were also referred to confidential mediation.
On 23 November 2004 the father commenced further proceedings seeking a recovery order in respect of Z as at the time the mother had not yet returned him to N. However those proceedings were discontinued on 26 November 2004 as by this stage the child had been returned to the town.
The present position is that the mother has complied with the order in respect of Z and is currently living in N with Z. However W and D remain in Q with Mr O. It is the mother's position that she came back to N under extreme sufferance. She thinks that that order is inappropriate not only from her point of view, in the sense that she is being compelled to come back to a place where she feels unhappy and insecure, but also from the point of view of the children because it has had the effect of separating W and D from Z and this cannot be in the best interest of any of the children concerned.
To a certain extent, this situation is of the mother's own making. However her counsel points out, on her behalf, that the mother is fearful for the safety of the two other children concerned and believes that they will be in danger in the event that they return to N. Accordingly, as the order is silent about these children, the mother feels it is not in their best interests to be returned to N. It is also a flavour of the mother’s case that she feels it is inappropriate for the court to make orders in the father’s favour in regards to W when he is not biologically related to the child.
That brings us to the present round of proceedings, which primarily concern W. On 1 December 2004 the father filed an amended application seeking an order to compel the mother to return W to N. It continues to be his position that both Z and W should live with him on both an interim and final basis. The father is concerned that the two children are currently separated from one another. It seems common ground between the parties that the two children are close and have lived together for all of their lives to date. In those circumstances, the father wants both children to live with him in N. He is less concerned about D. The mother's preference obviously is that, as soon as possible, all three children should live with her in Q”.[3]
[3] See Braddock & Malkinson (supra) at paragraphs 11 - 15
After leaving N, Mr and Ms O and the children travelled by car to Q. They took the opportunity to have a camping holiday before arriving in M C, which is near I in far north Q. Mr O has a sister, who lives in M C. The children concerned were in enrolled at the M C S S from
21 October 2004.
The interim hearing of 22 December 2004, presented many dilemmas for the court. The children were separated from one another. Both parties had raised serious concerns about the parenting abilities of the other, which could not be resolved in the brief interim hearing. Ms O had unilaterally sought to impose her will on Mr B, in respect of arrangements for the care of not only Z but also W. The outcome desired by Mr B clearly had the potential to impinge severely upon
Ms O’s entitlement to move freely within Australia and had implications for her relationship with Mr O. Clearly Ms O did not want to be in N.
After considering these various matters, I came to the conclusions that it was appropriate for both W and Z to return to N until the various issues surrounding their care could be thoroughly examined and sorted out. Perhaps unwisely, I anticipated that Ms O would return to N and would either patiently or perhaps more likely with a sense of frustration, await the final hearing. She after all was no stranger to the town and had support in it. It was not an easy decision for me to make. However, I considered that the status quo, which had arisen in respect of both W and Z, was that they had lived in N, with their mother, for all of their lives to date and the evidence clearly showed that Mr B had been a part of their lives for very many years. It was also clear that Ms O had unilaterally disturbed this long standing status quo.
I was not unaware of the difficulties which might face Ms O in returning to N. However, the fact remained that she had made the decision to leave the town independently of Mr B and had given scant regard to his feelings and the long term implication for not only Z but also of W of living far away from Mr B. I was also concerned that, given the circumstances of her departure from N, there was a high likelihood that any future contact arrangements between Mr B and the children would be problematic in the extreme. I was also conscious that, at this stage, Mr B was seeking a residence order in respect of not only Z but also W. I was concerned that if I acceded to Ms O’s position at the interim hearing stage, it would make any final hearing in this regard potentially otiose.
On 22 December 2004, I said as follows in the earlier reasons for judgment:
“Orders were made on 10 November 2004, which resulted in the return of Z to N. I expect at that time her Honour was of the view that the mother would elect to bring all of the children back with her to N and would not have wished the children to be separated from one another. However the mother has chosen to separate Z from his two older brothers. She has elected to allow both D and W to remain in M C with Mr O, where she herself would clearly prefer to be. Both parties acknowledge that such an outcome is not the best one for any of the children concerned. As a result, I am left with the uncomfortable feeling that the mother is trying to force the Court's hand and compel it to resile from its earlier orders in respect of Z that he should be returned to N until the final hearing of the parties’ competing applications. Essentially that the mother, by her unexpected action, is attempting to force the Court to the realisation that it is likely to be the lesser of two evils that the order in respect of Z be changed rather than that the siblings should be separated from one another. If this is the right conclusion, and I accept that it may be wrong, the mother's is mistaken in believing that the court will meekly submit to such pressure.
The authorities that bind me, in determining hearings such as this one, regarding arrangements for the care of children pending final hearing, are that self-help or unilateral action by one parent in respect of children taken without regard for the concerns of the other parent, is to be strongly discouraged. Secondly, as far as possible, the aim of such an interim hearing is to ensure, that from the time of the interim hearing until the final hearing of the parties’ competing applications, a situation is brought about in which the children have as much stability as possible. Usually this is done by the court making orders that will result in the continuation of previous arrangements relating to the care of the children, unless there are overriding indications relevant to the children’s welfare to the contrary. Such overriding indications would include convincing proof that the children’s welfare would be seriously endangered by remaining in that environment.
In this case both Z and W have lived in N for many years. An arrangement which came to an end by reason of the mother’s unilateral action in removing them from the town. The father, by his action in bringing these proceedings has wasted no time in demonstrating that he does not agree with such a relocation, either in the short or longer term.”
Evidence subsequently provided to the court in these proceedings has not caused me to resile from the view that Ms O wished to force the court’s hand in respect of the original decision that Z should return to live in N. I suspect that she, Mr O and Mr and Mrs M bitterly resent what they see as the unjustifiable intrusion of both Mr B and the court into their personal affairs. None of them can accept that Mr B has an interest in how the question of where Z and W should live in future is to be determined and that he is entitled to enlist the authority of the law in having the issue determined.
Relations between the parties, somewhat strained but essentially workable in the period between separation and October 2004, totally broke down. Since that time, all the parties in these proceedings have attempted to gather and throw as much mud as possible, in the hope that some of it will stick. They have each enlisted others in their cause. I am fearful that both Mr B and Ms O have attempted to enlist W and Z to their particular point of view. The atmosphere between the various actors in these proceedings can only be described as poisonous.
On 22 December 2004 I made the following orders:
“1.That the mother ensure the child W B M born 27 December 1995 is returned to live in N on or before 5 January 2005.
UNTIL FURTHER OR OTHER ORDER:
2.That in the event the mother returns to reside in N the said child W B M will reside with her and she will have responsibility for his care, welfare and development.
3.That the applicant P S B have contact to the said child each weekend from 5.00pm Friday until 5.00pm Sunday (or Monday in the event of a long weekend).
4.That in the event the mother elects not return to reside permanently in N the child W B M will reside with the applicant and he will have responsibility for his day to day care, welfare and development and the mother shall have contact with W at times to be agreed between the parties.
5.That the father’s contact to the child Z S P M born 1 June 1998 pursuant to the Orders made on 10 November 2004 is suspended between 24 December and 26 December 2004 and in lieu thereof he shall have contact to the child between 5.00pm on 26 December 2004 until 5.00pm 28 December 2004.
6.That this matter be listed for final hearing on 29 and 30 June 2005 at 10.00am as a reserve matter and 13 and 14 September 2005 at 10.00am as a head matter NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.”
At this stage Ms O and Z were living with Mr and Mrs M at their home in N. Mr and Mrs M had provided their airfares to return, in compliance with Federal Magistrate M’s orders. No doubt Ms O and Mr and Mrs M greeted the orders of 22 December 2004 with dismay. It is their position that it was impracticable for Ms O to remain in N until the final hearing. She had let go her Housing Commission home. She was no longer in paid employment at the W H. Her parents were not willing or able to accommodate her and her three children for a period of months rather than days or weeks. It is her position that N,
a remote mining town, does not have a large store of accommodation. She has subsequently relied on a letter from Mr S, the Member for N in the Legislative Assembly of the N T, in this regard.[4]
[4] See letter to Family Court of Australia from Mr S dated 21 January 2005 tendered in these proceedings
If I thought that Ms O would patiently await the final hearing in N,
I was sadly mistaken. In accordance with the orders, Mr B attended at Mr and Mrs M’s home on 26 December 2004 to collect Z for contact. At this stage, he discovered that Ms O and Z had once again left N. It goes without saying that he was not consulted in this regard and did not consent to the relocation. There was an unpleasant incident between Mr B and Mr M on this occasion, in which the police were involved. Mr and Mrs M declined to provide information to him as to their daughter’s whereabouts.
Proceedings in this Court regarding children invariably elicit powerful emotions from the parties involved. As a result, decisions of the Court are often controversial and frequently unpopular. A well ordered society demands that there be mechanisms available to resolve disputes between parties regarding a wide variety of matters, including those involving care arrangements for children. Once those dispute resolution mechanisms have been engaged, it is essential that the parties to a dispute abide by the processes provided and are not permitted to take the law into their own hands without penalty or some other form of adverse consequences. If parties are able to defy orders or disobey orders of a appropriately constituted court with impunity, inevitably the system of dispute resolution provided by the courts will break down and chaos will ensue. These comments apply with equal force to proceedings brought under the Family Law Act in respect of children.[5] It is fundamental that courts such as this one dissuade parties in proceedings before it that there is any benefit to be gained from “self-help”.
[5] See G & G (1981) FLC 91-042 at page 76,361 per Evatt CJ
In the proceedings before me, Mrs M denied that she assisted her daughter and Z to leave N in late December 2004. This is patently not the case. In cross examination, she revealed that her daughter moved to a house owned by her and her husband at H B, when she left N. Later Mr and Mrs M arranged to spend New Years Eve with Ms O and the children in C. Clearly Mrs M knew where Ms O had gone and where Z and W were living. She did not disclose this information to Mr B or his solicitors. On 25 January 2005 I made a recovery order in respect of both children and directed that until further order they should live with Mr B in N. The proceedings were adjourned until 1 March 2005 and I directed that a copy of the orders be served on Mr and Mrs M. I hoped that when Ms O realised the gravity of her behaviour, she would reconsider her position.
This was not the case. She and Mr O married in January 2005 in Q and, as a result, Ms O abandoned her name of M and assumed the name of O. D, W and Z were enrolled in schools in the C area using the surname O. I am satisfied that this action was taken in the hope of avoiding detection by Mr B or any other agencies he may have engaged on his behalf.
On 8 February 2005, I made a commonwealth information order directed to Centrelink, in order to assist with the location of the children. Offices of the Australian Federal Police located W and Z in C in late February of 2005 and, in accordance with my orders, placed them in the care of Mr B. W and Z have been living with Mr B, on his houseboat in N, ever since and have returned to school at N P S.
As I indicated in the interim reasons for judgment,[6] it would not have been my preference for the two boys to live on Mr B’s house boat because of its unorthodoxy, so far as accommodation for two comparatively young children was concerned. However, this outcome became inevitable because of the actions taken by the mother, which caused me to question the degree of insight she had into the responsibilities of being a parent. It seemed to me probable that a person who was prepared to ignore court orders in respect of arrangements for children and put the children at risk of being forcibly removed from her care was likely to have a poor level of insight into such responsibilities.
[6] See B & M (supra) at paragraph 36
Ms O did not seek to appeal the decision of the court made on
22 December 2004. Nor did she seek to bring any further application on her behalf. Rather she chose to defy the orders of the court. In her evidence before me she indicated that it was financially impossible for her to remain living in N. However she did not provide any information in respect of her attempts to find alternative accommodation for herself in the town. I accept that accommodation is scarce but it seems to me that Ms O did little, if anything, to see if she could abide by the orders. Although she was in a difficult position, it was of her own making.
I accept that she was torn in her loyalties between the children and Mr O. However, notwithstanding these matters, she was not without resources in N. She had lived in the town for over twenty years.
I suspect that she considered that neither Mr B nor the court would have the resolve to follow through on the orders of 22 December 2004. If this be the case, she was sadly mistaken.
Mr and Ms O have continued living in Mr and Mrs M’s home in H B to the present time. Ms O has not had physical contact with either Z or W since February 2005. Similarly Z and W have not had any physical contact with their older sibling D. Mr and Mrs M plan to leave N, when they have sold their home in the town. They hope that this is sooner rather than later. It is their position that they have kept a weather eye over W and Z, since their return to N and have been concerned at what they have seen. It is their position that Mr B has been obstructive of them having any meaningful contact with the children and has not been supportive of even minimal telephone contact between W and Z and their mother.
On 25 May 2005, Mr and Mrs M made application to intervene in these proceedings. Mr B objected to such intervention on the basis that Mr and Mrs M’s position was essentially concurrent with that of Ms O. However on 14 June 2005, I granted leave to Mr and Mrs M to intervene. Arrangements were subsequently made for Mr and Mrs M on the one hand and Ms O on the other, to attend the proceedings from N and C respectively by way of video link.
The various parties concerned now view each other through a prism of hostility. Having provided this background, it will be readily apparent why this is a case beset with difficulties and one which provides no easy solutions. The various parties concerned have radically different views as to how W and Z’s best interests will be served in future and each of them can marshal compelling reasons in support of his or her particular position.
The applications
Mr B is the applicant in these proceedings. He seeks orders that would see both W and Z living with him on a final basis and he having sole responsibility for making decisions regarding their day to day care, welfare and development. He proposes that Ms O have contact with the children for two weeks in the midyear school holiday and for three weeks during the Christmas school holidays, provided that she pays for the costs of travel for the first two contact periods and thereafter the parties share the necessary travel costs. He also seeks some other specific issues orders. A copy of the minute of the orders sought by him is attached to these reasons for judgment at Schedule One.
Ms O was at somewhat of a disadvantage at these proceedings. Her position is however relatively clear. Although she has not provided an up to date statement of the orders she seeks, I assume that they are essentially the same as set out in her response filed 13 December 2004. It would be her preference that Mr B have no contact with W at all. However she concedes that this is probably an unlikely outcome. Therefore she proposes that both children should live with her and that Mr B would have contact with the children for one week in the midyear school holidays and for two weeks in the Christmas school holidays. It is her position that he should pay all the costs of travel.
At a deep emotional level, Ms O and Mr and Mrs M believe that it is inappropriate that the court should make any orders in Mr B’s favour regarding W. In their view, it is perverse that such an order should be made in favour of a person, who is not biologically related to the child concerned.
Mr and Mrs M filed details of the orders which they seek in a minute dated 27 June 2005. Whilst they continue to live in N, they wish Z and W to live with them on one day and one evening per week. In the alternative they seek what they describe as a “temporary custody” order so they may leave N with W and Z and move to Q. It seems to be their position that an order placing the children in their care would be preferable to them living with Mr B. It essentially being their case that the children should not be separated and it is inappropriate for W to continue to live with Mr B because of his lack of a biological connection to the child.
Overall it would seem to be their position that the best outcome in the case would be for W and Z to be returned immediately to the care of Ms O. However, if the court determines that she is not equipped to care for the children that they should be the next option considered. Mrs M denies that such an outcome would result in her becoming a conduit for the return of the children to Ms O. For fairly obvious reasons, I am dubious about such a denial. A copy of the orders sought by Mr and Mrs M is attached to these reasons for judgment at Schedule Two.
The evidence
Mr B relied on the following affidavits of evidence:
a)An affidavit of himself filed 24 June 2005;
b)An affidavit of E K filed 22 June 2005;
c)An affidavit of J M filed 8 November 2004.
Each of those witnesses was required for cross-examination by both Ms O and Mrs M. Mr B personally attended court in Darwin. Ms M and Mr K attended court in N and gave their evidence via a video link.
In addition, Ms H, counsel for Mr B, tendered a number of documents into evidence. These documents included a letter which Ms O had written to Dr C, Mr B’s doctor, in November 2002; as well as records of the N T Police’s attendance at various incidents involving the parties.
Ms O relied on the following documents:
a)Two affidavits of herself filed 5 November 2004 and 24 June 2005;
b)An affidavit of herself sworn 29 November 2004 faxed to the court on 27 June 2005;
c)An affidavit of P J J O filed 5 November 2004
Ms O and Mr O gave additional evidence by means of a video link from C to the court.
Mr and Mrs M relied on the following affidavits of evidence:
a)An affidavit of S M and P A M jointly sworn and filed on 25 May 2005;
b)A further affidavit of P A M filed 14 June 2005;
c)A further affidavit of S M filed 14 June 2005;
d)An affidavit of A L M filed 28 June 2005.[7]
Both Mr and Mrs M and Ms A M gave evidence to the court by way of a video link from N.
[7] Ms A M is Ms O’s sister. She is currently 17 years of age. Accordingly, on a prima facie basis, her affidavit is inadmissible in these proceedings. Ms H objected to its tender. I formed the view that Ms M had already become irretrievably enmeshed in the conflict between the various parties in these proceedings. In those circumstances I determined that the sense of grievance Ms O and Mrs M would feel at the exclusion of the affidavit outweighed any possible psychological harm being occasioned to Ms M by giving evidence in these proceedings.
In addition both Ms O and Mrs M sought to rely on a number of other documents. These included some medical records in respect of Z, particularly his attendance on an audiologist and speech pathologist in N. I admitted those medical records into evidence and have read them. In addition both Ms O and Mrs M have taken photographs of the houseboat on which Mr B and the children currently live. These photographs are large, colour ones, which graphically display the houseboat.
In addition, Ms O and Mrs M sought to rely on a number of statutory declarations. These statutory declarations were completed by S E;
Y D-N; and S W. None of these persons was available to be cross examined by Ms H
Mr W and Ms D-N appear to be partners. Mr W gives what amounts to be a character reference on behalf of Ms O. Ms D-N deposes to an incident she purportedly observed in October 2003. She proffers her opinion that Mr B suffers from a “personality disorder”.
Ms E attests to what she believes is the unsuitability of Mr B to be in charge of children and her view that Ms O is an exemplary parent. She describes Mr B as being mentally out of control and physically cruel. Due to the obviously partisan nature of these various statutory declarations and the absence of their deponents for cross examination, I give these documents vary little weight.
Mrs M also sought to rely on an affidavit of B O. In his affidavit, Mr O purported to be able to give an insight into Mr B’s character. He described Mr B as a “serial litigator” because of Mr B’s involvement in litigation involving a work accident. Ms H objected to Mr O’s affidavit. I upheld her objection. In my view, the affidavit lacked relevance.
Mrs M also sought to rely on the letter from Mr S, to which reference has already been made. I elected to admit the letter into evidence. As I have already indicated, I accept that there is limited housing in N at the present time. I also accept that Mr S is sympathetic towards members of his constituency. However, Mr S is not able to provide any evidence regarding Ms O’s attempts to obtain alternative accommodation for herself in the town, prior to her decision to leave it in December of 2004.
Mrs M also sought to rely on a letter from the principal of the M C Primary School. This letter is dated 3 November 2004 and attests to how well D, W and Z have adapted to attending at the M C P S.
I accepted the letter into evidence but note it is in nature a testimonial and the children concerned had been attending at the school for less than a fortnight when it was written.
Neither Ms O nor Mrs M are trained lawyers. As a result they were at a significant disadvantage in these proceedings, having to deal with the skills of Ms H, an experienced family lawyer, who prepared her client’s affidavits with skill and diligence.
Some of Ms O’s and Mrs M’s material was irrelevant. However, in my estimation they were aware of the issues in the case and were able to advance their position coherently. Unfortunately, much of their case involved an attack on Mr B personally. It is their position that Mr B suffers some form of psychiatric illness and is motivated only by feelings of revenge against them in these proceedings. I was concerned at times that their obvious contempt for Mr B robbed them of objectivity in respect of their evidence. I believe that both have allowed their hatred for Mr B to blind them to some of his positive aspects.
Australian society has become much more mobile than it was previously. As a result, courts have had to adapt to how they receive evidence in proceedings before them and have had to accommodate technological advances into their processes. Neither Ms O nor Mrs M were able to afford the cost of travelling to D to appear before the court in person. As a result, the court arranged for them to give evidence and make submissions via a video conference system. This involved a split screen in D, on which images of the parties in each of C, N and D could be displayed. The technology is advanced. However, I accept that it is no substitute for the various parties and witnesses being physically in the same location as the court, where I could have an opportunity to closely observe them.
In the now somewhat dated decision of Dearman[8] Isaac J said:
“A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence will often lead a judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.”
[8] Dearman v Dearman (1908)7CLR 549 at 561
Although the technology used in this case was sophisticated, it did not allow me to have the facility to make such subtle observations of the various parties and the witnesses in C and N respectively. However, this visual technology was a considerable advance on taking evidence via the telephone. In all the circumstances, I believe that I am able to make some estimation of the credibility of the various witnesses who gave evidence by means of the video link process.
Mr B was a plain speaking and simple witness. I do not accept that he is motivated by any feelings of malice towards either Ms O or other members of the M family by virtue of the stance he has taken in these proceedings. He is not perfect however and has undoubtedly said and done things in regards to them, which he has had later cause to regret. Undoubtedly he now has no great regard for the M family. Given the general circumstances of this case, this does not surprise me. I do not consider that Mr B is the sort of person who is likely to have extraordinary supplies of magnanimity.
But it is a long way from that to suggest he has embarked on a vendetta against Ms O and her family and is out to “destroy” them. I accept that he loves both W and Z and wants to be involved in decisions regarding their care. I also accept that he is motivated in these proceedings by what he believes is likely to be in the children's interests. There is no cogent evidence to suggest that he is currently suffering from any serious psychiatric illness. Nothing that was put to Mr B caused me to doubt his general credibility. I consider him to be an honest witness and I accept his evidence.
Ms O frankly acknowledged that she has had serious difficulties in the past in relation to her use of alcohol. Her honesty in this regard is to her credit. However, at the end of the day, I was concerned that she had not been completely frank about the extent of her difficulties in respect of a range of issues, including the violence in her relationship with Mr O and her on-going use of alcohol. For reasons already provided, I do not think that she can be regarded as being objective about the nature of the relationship between the children concerned and Mr B. She has little, if any, regard for Mr B either before or after these proceedings. I was left with the impression that she regarded him as being dispensable once the relationship between her and Mr B had concluded. On a range of issues, I prefer Mr B’s evidence to hers.
Mrs M is clearly an intelligent person, who had prepared her case with rigour. She has a high level of contempt for Mr B and has difficulty understanding why the court would entertain his applications, let alone give him some measure of success. For obvious reasons, she is strongly partisan to her daughter. She too acknowledged that Ms O had had problems in the past, particularly in regards to alcohol. Accordingly, she did not attempt to portray Ms O as being without faults. Like many parents, I suspect that she may be blind regarding the full extent of those difficulties. In cases such as this one, blood is invariably thicker than water.
Mrs M attempted to portray Mr B as a pathological liar, who was able to deceive people, who did not know him better, as to his true nature. Like her daughter, she can see no good in Mr B and much of her case was a concerted attack on him and his character. I consider Mrs M to be a genuinely honest witness but not always a dispassionate or reliable one. I was concerned that she may have, either consciously or unconsciously, exaggerated her evidence to defeat what she sees as Mr B’s vexatious and frivolous case.
Her view of Mr B is encapsulated in the invoice, which she presented to him after M FM ordered Z to be returned to N. She sought that Mr B should pay her the sum of $10,500.00 in respect of what she described as his “frivolous action”. In addition, Mrs M showed scant regard for the orders of this court. I am satisfied that she actively encouraged Ms O to leave N in December of 2004 and thereafter took steps to aid her in escaping subsequent court processes. In my view, her actions in this regard demonstrate an extreme level of prejudice against Mr B, and as a result, I believe I must exercise some caution in respect of her evidence in its entirety.
In this case, findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of each of the witnesses concerned. In what follows and in what has been said in the matters of background, statements of fact constitute finding of fact.
As is obvious from these preliminary comments, the various parties hold a very jaundiced view of each other. As a result, each is swift to criticise the other and members of his/her household and swift to draw adverse conclusions on little but speculation. By way of example, Mr B raises matters he has heard from the mother about her childhood. These matters are irrelevant but raise the hackles of Ms O and Mrs M, who feel they must defend their family honour. Similarly Ms O enlists anyone who has a negative view of Mr B to her cause and he feels he must defend himself.
The issues
As is common with many cases that come before this court, where there is a high level of tension and hostility between the parties concerned, each of them has tended to reconstruct their lives together and to assess the other’s motives and proposals through a prism of hostility. Although the antipathy between the various parties is a matter of some importance in this case, at this point, I consider it useful to list the various evidentiary matters which seem to arise in the case. The matters, not listed in any degree of priority, seem to me to be as follows:
·Is it possible to discern what are the wishes of W and Z in respect of their future place of residence? If so, what are their wishes and what weight should be given to them?
·What is the nature of Mr B’s relationship with the two children concerned? In particular, what level of contact did he have to them in the period between the parties’ separation and October of 2004? Is there a qualitative difference between his relationship with W on the one hand and Z on the other because of the absence of a biological relationship with W?
·What is the nature of Ms O’s relationship with the two children concerned? Have those relationships been effected by her consumption of alcohol or drug use and if so, to what degree?
·Is Ms O better placed to attend to the children’s educational and medical needs if they live with her in C?
·If successful in these proceedings, so far as the residence of the children is concerned, who of the parties is most likely to be encouraging or supportive of W and Z maintaining a relationship with the other party concerned?
·Have the children been exposed to family violence in the past?
·Has Mr O inappropriately physically disciplined W? If so, what are the consequences of this?
·Who of the parties is better placed to administer to the day to day needs of the children in terms of attendance at school, diet, recreation and ancillary needs? Who of the parties is better placed to cater for the emotional needs of the children?
·What are the consequences for W and Z on the one hand and D on the other, if they are separated from one another as a result of these proceedings?
·Does Mr B’s house-boat constitute suitable accommodation for children of the ages of W and Z? Is it safe? In this regard, can Z swim sufficiently well?
·What are the appropriate orders to be made in respect of Mr and Mrs M, the children’s maternal grandparents?
Mr B’s case and evidence
Mr B is far from being a perfect parent. He is a knock-about working man, who enjoys fishing, sailing and diving. He has no need for the attractions of a large city. He leads a simple life. He has become a fixture of the community, which is centred on the G Y C. This community involves people who have elected to live on boats.
I suspect that the community is both eclectic and transitory. It is not an orthodox lifestyle, certainly when compared to life in the suburbs of the larger cities in this country.
In the past, Mr B has been the rear commodore of the yacht club. This involved him being responsible for the bar at the club. No doubt the position involved much conviviality. He has stopped this activity since Z and W came to live with him. In the past, Mr B cannot be described in any shape or form as being a teetotaller. I suspect he still enjoys a beer. It is his evidence that he has reduced his consumption of alcohol, since the children came to live with him. I have no reason to disbelieve his evidence. However his consumption of alcohol is still a matter of some concern to me.
Mr B’s present employer has a zero alcohol and drug policy in respect of its workers blood levels whilst at work. Accordingly he does not drink during the week and drinks only mid-strength beer at weekends. He indicated he drank a carton at weekends. Because of the nature of his work, as a plant operator, I accept Mr B’s evidence that he does have to watch his drinking levels.
I suspect that during the parties’ relationship, they both consumed alcohol at times, at levels which are likely to be considered excessive. As a result, their relationship was at times turbulent. Certainly there is independent evidence to corroborate Mr B’s assertion that Ms O had a significant problem with alcohol both before and after the parties lived together. Ms O herself acknowledges her difficulties in this regard. The evidence about her drug use is less clear. It is Ms O’s position that she has not used illicit drugs, particularly intravenous amphetamines, for many years. However, Mr B asserts that, in the later part of 2003, she returned to taking amphetamines and this severely impacted upon her capacity to parent the children properly.[9]
[9] See Mr Braddock’s affidavit of evidence at paragraph 10
Mr B’s solicitor subpoenaed an extensive range of records from the N T Police in regards to Ms O. These indicate that on 11 January 2003 she came to the notice of the police in respect of her driving. She was breathalysed and found to have a blood alcohol reading of .106 percent. It also seems that she was issued with a trespass notice in respect of an incident involving alcohol at the W H, to which the police were called.
In mid 2004 Ms O’s relationship with Mr M came to an end. Around that time she commenced her current relationship with Mr O. It seems to have been a turbulent time for the three persons involved. On
4 August 2004, police records indicate that Ms O telephoned the police and informed them that Mr M was “sitting in the vacant house next to her and is watching every move she makes and is right now listening to her conversation she is having with police…”. The police records note that Ms O appeared to be severely under the influence of alcohol or some other substance when her complaint was made. Ms O acknowledges that she was very drunk on this occasion.
It also is clear that the commencement of the relationship between Ms O and Mr O was a catalyst for at least one episode of violence between Mr O and Mr M. It is clear that Mr O struck Mr M on the side of the head and caused him to fall to the ground. Mr M received a laceration to his face as a result. Mr B himself was not present during the incident. Both Ms O and Mr O acknowledge that it occurred but downplay its significance and particularly that W and Z were witness to it.
The police records indicate that Mr M received five stitches in respect to a cut to his right eye. Mr M was apparently unwilling to make a complaint in respect of the incident, which occurred on 16 July 2004. Both Ms O and Mr O assert that Mr M was the aggressor in the incident and Mr O was rightfully defending himself. It is Mr O’s position that Mr M sustained injuries, when he struck the concrete. It is Mr B’s position that W and Z were exposed to this incident, which greatly concerns him. As previously indicated, Ms O and Mr O deny that this was the case. However, it seems that both the children were in the vicinity of the incident. Ms O rather blithely indicating that the boys saw her hosing down the blood and nothing more.
It is also a significant part of Mr B’s case that W and Z have been exposed to family violence between their mother and Mr O. Again, there is some independent evidence to corroborate his position. Mr O himself indicates that he and Ms O had some arguments in N and have had a few since they left the town.
Police records indicate that, on 2 October 2004, they were called by neighbours to an incident at Ms O’s home involving her and Mr O. It is reported that Mr and Ms O had a verbal dispute, which escalated to a physical alteration, which culminated in Mr O “pinning” Ms O to the ground. In response to this matter, Mr O indicated that he was responding to being screamed at by Ms O and “restrained her once on the ground”. He points to his expertise as a security officer in restraining unruly persons in justification of his behaviour.
Overall, it is Mr B’s position that, during much of 2004, he became increasingly concerned regarding the mother’s capacity to properly parent W and Z because of her level of alcohol consumption and the turbulent nature of her personal life. He draws support for his position from a letter which the principal of the N P S wrote to Ms O, which indicated that staff at the school had concerns about Z. In particular concerns about his hygiene and whether he was being provided adequate food for recess and lunch. Staff at the school was also concerned that he was coming to school very early in the morning. Ms O acknowledges that the letter was sent but believes that the concerns of the school are overstated. It is her position that the children failed to take their lunches from the refrigerator as a ruse to get her to provide them with money to buy their lunches elsewhere. At the time, she was on crutches with a broken ankle and was finding it difficult to keep up with the children, whom she describes as being very active.
I accept Mr B’s evidence that he has been closely involved with W’s care since W was about eighteen months of age and has been closely involved with Z since Z’s birth. It is his position that he saw both boys most weekends from Friday afternoon until either Sunday evening or Monday morning. He saw D less frequently. I also accept his evidence that he clearly informed Ms O that he would be unhappy at the prospect of the children leaving N and was unwilling to agree to such a move.
It is a significant element of both Ms O and Mrs M’s respective cases that Mr B has been motivated in these proceedings because of a pathological or obsessive hatred of their family. In both the interim and the final proceedings they categorised Mr B as suffering from serious psychological or psychiatric problem, which Ms O described as an “obsessive-compulsive” problem. It is her position that Mr B is not really interested in W and Z’s welfare but rather wished to wreak revenge on her and her family. Mrs M shares this view.
In the past Mr B does seem to have suffered an injury at work, which resulted in him commencing workers compensation proceedings. It is Mr B’s evidence, which I accept, that he was electrocuted at his work in March of 1998 and as a result suffered post traumatic stress disorder, which required treatment until some time in 2001. It seems to be Ms O’s position that the injuries sustained by Mr B in this workplace accident adversely changed the makeup of his personality. There is no independent medical evidence to corroborate Ms O or Mrs M’s opinion in this regard and certainly no cogent medical evidence to this effect.
No doubt the incident was deeply disturbing to Mr B, who understandably wished to seek redress for his grievances. However, it is a long way from that to assert that he has some sort of pathological medical condition or an obsessive desire to pursue his rights. To my mind, Ms O and Mrs M’s use of this incident reinforces the view that they are swift to jump on any matter from which an adverse conclusion can be drawn on the basis of prejudice alone.
To the contrary, in my estimation, Mr B has commenced these proceedings because of his concerns for the two children involved.
I do not believe that his concerns can be described as either nebulous or trivial. Rather, my impression of Mr B was that he was a concerned parent, who was struggling to come to terms with having to care for two young children, an outcome which he earnestly desired but which he thought was unlikely to occur. In his presentation before me, I could ascertain no evidence of mental abnormality. His answers to questions were considered and frank.
That is not to say that Mr B is without failings. It is Ms O’s case that Mr B was consistently violent towards her, during their relationship and, as such is an inappropriate role model for children of the ages of W and Z. Mr B and Ms O separated, in unfortunate circumstances, in November of 2002. On this occasion Mr B and Ms O attended the
A Club together and both consumed a significant amount of alcohol. Mr B went home first and went to bed. Ms O continued drinking and did not return home until the next morning. When she did, she poured some cold water on the sleeping form of Mr B. An unpleasant incident followed. The parties grappled with one another and Ms O fell and was injured. No doubt there was a lot of noise involved and the police were called. Ms O was taken to the hospital. Later she wrote a letter indicating that Mr B had not previously been violent towards her.
I take this letter with a grain of salt. As I have already indicated, I believe that the relationship between the parties was frequently turbulent and the mutual consumption of alcohol was the catalyst for this. No doubt the stresses of Mr B’s work injury did not help things. The incident does Mr B no credit but, in my assessment, I do not believe that he is an inherently violent person.
It is a central plank of Ms O and Mrs M’s case that Mr B’s houseboat is inherently dangerous accommodation for children of the ages of W and Z. I have seen photographs of the houseboat, which is certainly unorthodox, so far as accommodation is concerned. It is a square floating structure made of what appears to be either corrugated iron or aluminium. It has a flat roof and appears to be floating on a pontoon. It has no motor. At one end of the houseboat is what appears to be a fenced verandah. At the other end, is an unfenced deck, which floats a few inches above the water.
The houseboat has a toilet but no holding tank for effluent. As a consequence, Mr B and the children use the toilet and shower at the
G Y C. The houseboat has no telephone. It does however have power and the children have access to television and DVD’s. Mr B cooks on it. In my view, the houseboat provides far from ideal accommodation for two children of W and Z’s ages. I accept however Mr B’s evidence that the children themselves like living in it. I also accept that the town of N itself has a chronic shortage of housing. In large part, Mr B is living in the houseboat because he could find no where else when he and Ms O separated.
However, in my view, it is a long way from saying that the houseboat is far from ideal or unorthodox to a position where is can be said to be inherently unsafe. The houseboat is approximately seventy five metres from the shoreline and some one hundred and fifty metres from the clubhouse itself. Mr B asserts that it takes about a minute to motor in a dinghy from the houseboat to the shore. The bay in which the houseboat is moored is subject to a two metre variation in tide. This means that at low tide the houseboat is often high and dry and at high tide has between one and two metres of water beneath it. For obvious reasons, I accept that water of any depth can constitute a threat to children. The assessment I have to make in this case is concerned with whether the children’s current living circumstances pose an unacceptable risk to W and Z in all the circumstances.
Clearly both children have spent a lot of time on the houseboat from time to time and are also experienced in the use of small boats. It is Ms O’s position that Z in particular has difficulties with swimming because of his long-standing ear problems. I do not accept this to be so. In this regard I prefer Mr B’s evidence that both W and Z are proficient swimmers. Mr B gave compelling evidence regarding taking both children with him snorkelling. Z was able to spend approximately two hours snorkelling in water some fifteen to twenty metres deep. I accept that being on and in the water is an integral part of both W and Z’s life. They are both keen junior sailors.
I suspect that some people may regard the environment of G as being an idyllic and adventurous place for children to grow up in. Mr B describes the surrounds of the G Y C as being “the best backyard in Australia”. He cannot be regarded as being a dispassionate observer in this regard. However, the environment in which the children are currently growing up is not without its attractions although not without practical difficulties. It also has some dangers, not the least of which are crocodiles. Ms O and Mrs M point to the fact that the authorities have placed a large sign on the beach warning of the dangers of saltwater crocodiles. In this regard, I accept Mr B’s evidence that crocodiles do not pose a significant threat to either swimmers or boat users in the vicinity of Mr B’s mooring. I accept he is vigilant about crocodiles and the threat they pose. He is experienced in this regard. It is also a fact of life for all who live in the tropical coastal areas of Australia that tropical cyclones pose a threat. In my estimation Mr B has an understanding of cyclones and the necessary precautions to be taken, particularly by those who live on the water.
It was Mr B’s evidence that he does not intend to continue living on the houseboat indefinitely. He deposed that he was currently in negotiation with Mr G Y of the G Association to develop an aqua-culture business on the G P. As part of this business, Mr B anticipated that Mr Y would provide him with housing in the N area. Mr B also indicated that he expected to make “millions” out of the business. I am somewhat dubious about Mr B’s assertion in this regard and believe that he is likely to be living on the houseboat for some time to come.
In my assessment, Mr B has not been particularly open to the encouragement of the obviously significant relationship between both children and their mother. He is obviously not particularly well disposed towards Ms O and Mrs M, neither of whom he trusts, for obvious reasons. However, it is part of the responsibilities of being a parent to encourage a close and loving relationship between the child and the other parent concerned. In this regard, Mr B has fallen far short of what is acceptable. In his favour he points to the fact that he arranged for the children to send Ms O a present on Mother’s Day.
I accept that it is difficult for the children to have telephone contact with their mother. Mr B’s houseboat does not have a conventional telephone and mobile coverage in the N area is poor. In order to contact their mother, W and Z are dependent on using the public phone in the G Y C. This is far from ideal.
Up to this stage, Mr B has been unwilling to allow the children to have overnight contact with Mr and Mrs M. He justifies his behaviour because of his fear that the children will not be returned to him and Mrs M will attempt again to secret the children away from N, as I am satisfied she has done in the past. It is regrettable that in such a small community as N, up to this stage, neither W nor Z have had any opportunity to spend lengthy periods of time with their maternal grandparents.
In this regard the evidence of Ms M assumed some significance. She was a most impressive witness. It was her apprehension that initially Mr B had said some negative things to the children about their mother, in her hearing. She indicated that she had pulled Mr B aside and told him that this kind of behaviour was unacceptable and likely to be harmful to the children in the long-term. It was her evidence that she had not noticed Mr B speaking inappropriately about Ms O in the period since.
Ms M and her family, which includes three boys of nine, eight and seven, have previously lived on board a yacht moored at the G Y C for a period of about ten years. Recently she has moved into more conventional accommodation in N. However, as a result of living at the G Y C for so many years and also being a committee member, she has become a close friend of Mr B, whom she estimated she saw about four times a week. Her children are friends of W and Z and she sees the children often.
In her estimation the children share a close and loving relationship with their father, who provides them with “lots of love and care”. In her estimation, initially Mr B had had “some dramas regarding the care of the children but was now doing well.” W in particular was very unsettled regarding his return to N and had to be encouraged to speak to his mother on the telephone. I accept Ms M’s evidence that she assisted W in this regard.
For fairly obvious reasons, Ms M did not believe that a houseboat was an especially dangerous place for W and Z to live. She herself had brought up her children on a yacht. I do not consider that she was “gilding the lily” in her evidence because of her loyalty to Mr B.
Mr K’s evidence did not take the matter very much further. Since September of 2004, he has been driving the N P S bus on school mornings. He collects the children each school morning and deposed that they were delivered punctually and properly dressed. He too is associated with the G Y C and lives on a yacht moored there.
Mr B is available to put the children on the bus each morning. However, he is not available to collect them from it in the afternoons. Ms O and Mrs M are critical of him in this regard and it seems this matter has been the subject of complaint to Family and Children’s Services. Since that complaint was made, Mr B has endeavoured to shorten his working hours, so that the children are left unattended for only about fifteen minutes before his return from work. The children also attend after school care on two occasions each week. I accept Mr B’s evidence that he is unable to afford the cost of the children attending after school care each day. At the present time, it is not open to Mr B to stop working. Like many other single parents, he has to juggle his family and work responsibilities. In my assessment, bearing in mind Ms M’s evidence in particular, he is doing a reasonable job in this regard.
As has previously been indicated, in the past, whilst the children were in Ms O’s care, the authorities at N Primary School have expressed some concern about the children’s presentation at school. It is Mr B’s case that he has provided a more stable routine for the children since their return to N. In this regard he relied upon a letter dated 20 May 2005 under the hands of the Assistant Principal and Acting Principal of the N P S. In part, the letter reads as follows:
“As the Assistant Principal of Early Childhood, I have been able to observe both Z and W in the broader school environment. Since their return from Q earlier this year, both boys have made significant progress emotionally and socially. This has been reflected in their improved academic aptitude.
They appreciate their stable routines and consistency of approach currently afforded by their home situation. Both boys present at school as children who are well cared for and whose parent shows considered interest in their school life.”
I regard the letter as having some significance in this case. Both children are reported to be attending school punctually and doing well. In my view this corroborates Mr B’s assertion that he is capable of properly supervising and caring for the children.
Ms O’s case and evidence
Ms O did not provide extensive written evidence in support of her application. Her evidence is infused with a strong tone of negativity towards Mr B and a sense of incredulity that his application was not only being entertained by the court but had also met with some success to this point. It is her position that Mr B has never really been interested in either W or Z but has only brought these proceedings out of malice for her. Although she concedes that Mr B has been a father figure to W, it is her position that it is inappropriate for W to have any extensive involvement with him. She begrudgingly indicated her acceptance that W and Z do love Mr B and that Mr B loved them in return.
However, in her estimation, she is by far the more competent parent. She described herself as being a “full time mother” whereas Mr B at best had provided only “a semblance of caring for them.” Ms O believes that she is far better placed than Mr B to provide for W and Z’s health and educational needs, if they live with her in C, a much larger and better serviced town than N. She asserts that Z in particular needs urgent speech therapy and access to an ENT specialist in regards to problems with his ears and delayed speech. It is her position that, in the past, she has ensured that Z has had access to appropriate medical care. In this regard she provided a bundle of documents in respect of audiology and speech pathology sessions she had arranged for Z in N in 2002 and 2003. She is very critical of Mr B for not following up on these appointments and also ensuring that both children attend the dentist.
I consider there is some validity to Ms O’s criticisms. However, she herself has not gone out of her way to ensure that Mr B is advised of what is required in this regard. In addition, it seems to me that Ms O’s primary motivation for leaving N was variously her desire to leave the town because of its past connotations for her; her wish to escape the social milieu in which she was involved in the town, particularly in regards to alcohol consumption; and her desire to pursue her relationship with Mr O; rather than her concerns for the children. I do not think that she left N primarily to advance either W or Z’s best interests but rather to pursue her own needs.
In moving away from N with the children, Ms O clearly gave no thought as to how the children, particularly Z would maintain their relationship with Mr B. Although she concedes that the children did have regular contact with Mr B in the period following separation and were happy to go to him, it seems to be her position that this happened only under sufferance. In my estimation, Ms O hoped that she would be able to cease the relationship between the children and Mr B by moving away from N. In my assessment, she had no viable proposals as to how the children would maintain this important relationship in their lives and did not consider at all the emotional ramifications for W and Z of the abrupt cessation of this relationship.
Ms O seems to have been genuinely surprised that Mr B commenced these proceedings and more surprised that his case has been given some credence by the court. I continue to hold the view that Ms O considered that she could force the court’s hand in regards to the matter and thought, if she stayed away from N, the court would be unwilling to change the residence of the children on either an interim or a final basis. In my view, by her poor regard for Mr B, Ms O has demonstrated an imperfect understanding of the responsibilities of being a parent.
In her affidavit material, Ms O deposes as follows:
“All I can do is hope and pray that Mr B’s lies and exaggerations about my past is recognised for what they are and that my sons are returned to me soon. If the court does not find in my favour it is my wish that my parents have custody of the boys as I know that they will at least be safe and cared for by them and they would be close to their whole family as they have always been if they are living in Q.”[10]
[10] See affidavit of Ms O filed 24 June 2005 at paragraph 8
Mr R was well aware of the serious implications of this issue. He described it as “regrettable” that D is separated from his brothers.
Z indicated to Mr R that D was an important member of his family. W was more ambivalent about his relationship with D, indicating that the two fought from time to time. It is, of course, not uncommon for siblings to argue and fight.
Mr R took the view that the separation of W and Z from D needed to be considered in the broader issues associated with the case. Clearly this is so. However, I am well aware that the separation of the children from one another is likely to have serious implications for the quality of their relationship with one another, once they have reached their maturity. It seems highly likely that, if the two younger children are separated from D, in the sense that they no longer share the same household, a level of intimacy in the relationship will be lost, which cannot be compensated by holiday contact. I agree with Ms O and Mrs M that this is a most significant issue.
I am satisfied that W and Z have a warm and appropriate relationship with their maternal grandparents. In particular, I am satisfied that Mrs M has played an important role in their lives. She has regularly assisted Ms O in caring for the children, who have been regular visitors to her home in N for all of their lives to date. Mr M, although a loving grandfather, has perhaps played a more distant role. Certainly neither Mr nor Mrs M has attempted to supplant the parental role played by their daughter, Ms O, in respect of either W or Z. They put themselves forward as a residential option for the children only to avoid W and Z being placed with Mr B. I have grave doubts that, if the court did place W and Z with Mr and Mrs M, that the children would continue to live with them. I consider it highly likely that they would be returned to Ms O. As a result of these matters, I do not consider that Mr and Mrs M are a realistic option to provide a residence for the children on a final basis.
That is not to say that they should not have extensive involvement with children. Clearly, up to this stage of their development, both W and Z have been closely involved with their grandparents. It seems to me appropriate that Mr and Mrs M should have overnight contact with the children, particularly whilst they continue to live in N. It is likely to be of some benefit to the children that they have a sense of connection to their maternal family. The one and, I concede, major drawback to such contact is that the children are likely to be exposed to a high degree of hostility for Mr B from Mr and Mrs M.
c) The likely effect of any changes in the children’s circumstances
Assessing the effects of change and separation are at the heart of this case. Obviously, if W and Z continue to live with Mr B in N, they will see far less of their mother and D than they have previously. If they return to the care of Ms O, they will have far less involvement with their father, apart from in school holidays. It does not seem to me to be reasonable to expect Mr B to move away from N, particularly when Ms O left the town secretly and without his permission. Similarly it seems unlikely that Ms O will ever choose to return to live in N, notwithstanding it is the town in which she grew up.
Since October of last year, W and Z have led an unsettled existence. Firstly, they were removed, at short notice, from their school and familiar environment in N by Ms O. They were enrolled briefly in school at M C. Thereafter, Z returned to N at the court’s instigation. Then again was removed from N, at Christmas time, without the opportunity to say goodbye to Mr B. Their surnames were changed and they were enrolled in yet another school in C.
On any view, the lives of the children from October of 2004 onwards, has been somewhat chaotic. The author of this chaos was largely Ms O. It was regrettable in the extreme that W and Z had to be removed from Ms O by means of a recovery order issued by the court. It is unfortunate that the children had this involvement with Federal Police Officers. However, the court could not allow Ms O to defy its orders or condone her frustration of Mr B’s wish to pursue his application for the residence of the two children.
One of the major drawbacks of Ms O’s position is that it would necessarily involve another change for the children and so a major act of readjustment on their part. Mr R was concerned at this prospect. In his assessment, both W and Z were well settled in N with Mr B. In Mr R’s assessment both children drew a sense of comfort from the familiar environment of N and their school, friends and the activities they engaged in there. This is a significant factor, which favours Mr B’s proposal.
d) The practical difficulties associated with contact
Unfortunately, this is a case which is beset with many difficulties, not least of which is the practical aspects of arranging contact whoever of the parties is ultimately successful. There is a direct air link between G and C, which is utilised by commercial airlines. No specific evidence was given as to the cost of a return air ticket between G and C at the present time but in her invoice to Mr B, Mrs M indicated that the “forced airfares for Z and B” amounted to $1,880.00. It is likely that the children’s costs of travel between the two locations will be prohibitively expensive for both parties but particularly Ms O in the future.
In addition to difficulties related to the expense of contact are problems associated with the extreme difficulty the parties have in communicating effectively with one another. This is a situation which is likely to persist for some time to come. To put it bluntly, the parties presently do not have the resources to be able to co-ordinate any future arrangements for contact effectively. Because of these two factors, regardless of whether the children live with Mr B or Ms O in future, I have grave concerns that they will be able to maintain their relationship with the other party concerned.
Mr B is aggrieved that Ms O’s decision to remove the children from N has resulted in him incurring substantial costs to secure their return to the town. In those circumstances, he seeks that, for some time to come, Ms O should bear all the costs of contact. In my assessment, Mr B is likely to be slightly better off financially than Ms O. He has a better paying job. I believe that it is appropriate that the parties share the costs of the children’s contact travel equally, as Mr R recommended.
Whilst Mr and Mrs M continue to live in N, there appear to be few, if any, practical considerations which prevent them having overnight contact with W and Z. N is a small community, whose residents are readily accessible by one another.
e) The capacity of each parent to meet the children’s needs, including emotional and intellectual needs
Mr B is critical of Ms O in respect of the children’s performance at school during much of 2004. In my view, there is some substance to his criticisms. Mr B has given W and Z a sense of routine, in respect of their attendance at school and their teachers have noted a marked improvement in their attendance and academic aptitude. This is a factor which favours Mr B’s proposal.
That is not to say that Mr B is not without his failings in respect of the needs of the children. Mr R found him wanting in respect of Z’s medical needs, particularly for speech therapy. It is a significant part of Ms O’s case that C, a large and well resourced provincial city, is better placed than N, a remote mining community, to provide for all manner of the children’s needs, not only medical but also recreational and educational. This is undoubtedly true.
However, for reasons already provided, I do not consider that Ms O left N necessarily so that W and Z could have access to these facilities. Obviously N does have schools and a hospital. It is set in a remote part of Australia but it is visited by medical specialists, including speech therapists, from time to time, as the records tendered by Ms O demonstrate.
It is likely that both W and Z are torn in their emotional loyalties at present. Clearly, the last few months of their lives have been turbulent ones. The children cannot fail to be affected by the obvious hostility Mr B and Ms O feel for one another. This conflict has the potential to do long-term emotional harm to the children. In the form of the email sent to the children, there is evidence of Ms O attempting to influence the children. Ms M has also deposed that she has heard Mr B speaking negatively of the children’s mother to them. However, I was impressed with Ms M’s evidence that, after being counselled about his behaviour, Mr B has desisted from this practice. W told Mr R that Mr B does not criticise his mother. The children are comfortable with Mr B. However, as I have already indicated, it is my impression that Mr B has not been particularly supportive of the children having telephone contact with their mother or direct physical contact with their maternal grandparents.
I am also concerned, if the boot was on the other foot, that Ms O and her family would be supportive of the children having on-going contact with Mr B and would be supportive of the children continuing to have a significant relationship with him. By removing the children from N, not once but twice, Ms O showed scant regard for the children’s emotional connection to Mr B. I suspect that it would be her preference for the children, particularly W, to cease any on-going relationship with Mr B.
Accordingly, in my view, both parties’ behaviour and attitudes pose some threat to the emotional wellbeing of the children, whom I consider to be vulnerable to some degree. However, I think the prognosis is more favourable in regards to Mr B being able to nurture the children’s relationship with their mother than vice versa.
f) The children’s maturity, sex, background and other characteristics
W and Z are nine and a half and seven years old respectively. They have lived in N all their lives and enjoy sailing, boating and fishing. Neither is an exceptionally mature child. Neither has any specific characteristic, which falls for consideration under this sub-section.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
It is a significant element of Ms O and Mrs M’s respective cases that, if the children remain in the care of Mr B, his current residential circumstances pose a significant threat to the safety of both W but particularly Z. In their submission it is inherently unsafe for young children to live on a houseboat, particularly in an area inhabited by saltwater crocodiles. Ms O argues that it is a substantial advantage of her case that the children would be living with her in conventional accommodation. Mrs M is also critical that, whilst in Mr B’s care, the children have to play on a beach, which is littered with rubbish and utilised by itinerant campers.
Mr B’s houseboat provides unorthodox accommodation for the children. I have already expressed some reservations about it. However, I am satisfied that Mr B has an appreciation of the risks involved in living on the water with young children and of the dangers of crocodiles and cyclones. The children have become accustomed to visiting the houseboat over many years. Although at this point, Ms O wishes to indicate that she had severe reservations about the children visiting the houseboat after the parties’ separation, the fact remains that she did nothing about those reservations. She herself grew up on a cruising yacht. I am also satisfied that both W and Z enjoy living on Mr B’s houseboat. I accept Mr B’s evidence that Z is able to swim sufficiently.
I do not think that either party would willingly expose the children to any serious risk of either emotional or physical harm. However, I share Mr R’s concerns that certain aspects of the mother’s lifestyle may have this potential. I accept that W is discomforted by his mother’s previous high levels of drinking. I am dubious that moving from N alone would be sufficient to reduce the level of her alcohol dependency. The issue of the mother’s previous drug use is more uncertain. I am concerned that W has witnessed his mother using intravenous drugs on at least one occasion, albeit some years ago. However, I am not in a position to make a definitive finding in this regard. However, it is a significant issue that W raised Ms O’s drinking with Mr R as well as his concerns regarding Mr and Ms O arguing together. These are factors which strongly favour Mr B’s proposal for the maintenance of the status quo.
h) The attitude to the children and the responsibilities of parenthood, demonstrated by each of the children’s parents
The obligations of being a parent, both legal and moral, are inevitably restrictive of personal choice and movement. In this case, there is a tension between Ms O’s entitlement to live how and where she likes with her obligation to support a relationship between W and Z and
Mr B, a significant person in their lives. By electing to remove the children unilaterally from N, Ms O showed a poor understanding of the responsibilities of being a parent. She showed scant regard for the feelings of either W or Z or indeed Mr B himself. I strongly suspect that, in choosing to leave N when and how she did, Ms O put her own emotional needs before those of the children.
Mr B has been criticised by Ms O and Mrs M for conducting a ruthless vendetta against them, in which he has used his application for the residence of the children as a weapon. I do not accept this to be the case. To the contrary, I accept that Mr B brought his application because of his concerns about the children and Ms O’s capacity to adequately parent them. In my view, his concerns were not without foundation. In those circumstances, I can well understand why he has pursued his application with the vehemence he has.
Since W and Z came into his care, Mr B has continued to work on a full-time basis. I accept that the financial reality of his situation is that he is compelled to continue working. In N, Mr B does not have any familial support to assist him with caring for the children. Ms O and Mrs M are critical of him for not properly supervising the children, after school, because of his work commitments. In Mrs M’s submission, the beach at the G Y C is a particularly dangerous place because it is utilised regularly by drunken itinerants. These concerns have been raised with the Department of Family and Children’s Services. It is Ms O and Mrs M’s position that these failings on Mr B’s part demonstrate an imperfect understanding of the responsibilities of being a parent.
I do not accept this to be the case. In my assessment, somewhat unexpectedly to Mr B, he has had to assume full parental responsibility for the children concerned. This has necessitated him making significant changes to his lifestyle. I accept that he has moderated his working hours so that the children are not left significantly unsupervised after school. He has also cut back on his responsibilities at the y c. Of most importance in this regard is Ms M’s assessment, supported by Mr R, that he is currently doing a good job of providing a stable and nurturing environment for the children. Apart from some failings in respect of Z’s speech therapy, I accept that Mr B has a high level of insight into the responsibilities of being a parent.
I also accept that in the long-term, Mr B wishes to move from the houseboat. I am however somewhat sceptical that he will be able to achieve this outcome through his joint venture with Mr Y. I agree with Mrs M’s assessment that this is very much “pie-in-the-sky”.
i) Any family violence involving the children or a member of the children’s family
j) Any family violence order that applies to the children or a member of the children’s family
I am satisfied that both W and Z have been exposed to family violence whilst in Ms O’s care. On balance, I think it highly likely that they witnessed the altercation between Mr O and Mr Miles. This was an episode of quite serious violence. As I have already indicated, W raised this issue unprompted with Mr R and complained about it. He also complained about being “flogged” by Mr O. This incident was of particular concern to Mr R.[21] In her evidence, Ms O indicated that she did not approve of corporal punishment. This may be so. However, the incident between W and Mr O continues to reverberate with W and I consider that there is much substance to Mr R’s view that it has caused W to be wary of Mr O.
[21] See family report at paragraph 61(ii)
The danger that is represented to young children of violent conduct of this type is not confined to a risk of physical harm to them. It is generally accepted that it is not appropriate to expose children to any kind of violent behaviour and such exposure may have serious consequences for their long term development. The issue was discussed by the Full Court of the Family Court in two cases, In the marriage of J D & B G[22] and In the marriage of Patsalou[23]. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict with the use of violence in the future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents. In this regard, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of another person, especially the other of a child’s parents, is not a suitable role model for children.
[22] In the marriage of J D & B G (1994) 18 FLR 255
[23] In the marriage of Patsalou (1994) 18 FLR 426
There are no current family violence orders in place in respect of the parties.
k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. However, whatever the outcome in this case, there is little doubt that someone will be unhappy with the result and may find it difficult to accept. Save for advocating that the parties focus on the children’s best interests, there is little the court can do to ensure that future litigation is contained. It seems inevitable that there will be hostility between the parties for some time to come and, against such a background, a high probability of further proceedings.
This is a particularly difficult case. Neither Mr B’s position nor
Ms O’s is free of problems. This is another factor which makes further proceedings likely. However, notwithstanding these difficulties, the Court must make a decision between the parties’ competing proposals.
Conclusions
As will be apparent from these reasons for judgment, I have not found this to be an easy case. Both parties’ proposals have disadvantages as well as advantages. In the end, it is necessary to attempt to weigh up the various factors and so focus on what I believe is likely to be the best result for W and Z.
As I said at the outset, this is a difficult case, which creates many problems but presents no easy solutions. Both Mr B and Ms O love and are loved in return by W and Z. The children each have very significant relationships with both their mother and with Mr B, who to all intents and purposes must be regarded as the father of both children. Given what has unfolded since October of 2004, inevitably the children’s relationship with one or other of their parents must be significantly changed as a result of these proceedings.
I have come to the conclusion that W and Z’s interests will be best served if they continue to live with Mr B in N. I have reached this conclusion primarily on the basis of the wishes expressed by the children, particularly W to Mr R and my concern that it would be unsettling for the children to have another significant change in their care arrangements at this stage.
The past and current parenting styles of both Mr B and Ms O are not without their concerns for the court. Mr B did not choose to live on a houseboat because it provided a child-focused environment. However, this environment has now become an integral part of both W and Z’s lives. It is an unusual environment but one which I am satisfied the children enjoy and which provides some unique challenges for them.
I do not accept that it is inherently dangerous.
To his great credit, Mr B has made significant changes to his life to accommodate the full time care of W and Z in it. It is important that the school authorities note that both children have improved in their presentation at school. There is nothing to indicate that the children’s emotional wellbeing or day-to-day care would be significantly compromised if they remain with Mr B. I accept Mr R’s conclusion that Mr B’s parenting is “good enough to suggest that a change of residence is not warranted in the current circumstances”.
True it is that up until comparatively recently, Ms O was the parent who provided the vast majority of care for W and Z and the children concerned lived in the same household as their older brother D. It is highly significant that the children are being prevented from living in the same household together. I realise that this is likely to have significant implications for the three children to have as complete a connection with one another as possible, when they have attained their maturity. However, my concerns about Ms O’s parenting and her imperfect insight into her responsibilities in this regard have led support to my view that Mr B is better placed to provide the residence for the children at this stage.
If the children are returned to live with Ms O, I hold grave fears that she would once again attempt to sever the children’s relationship with Mr B, as I am satisfied she wished to do when she removed them from N in the first place. In addition, I am concerned at the potential for the children to be exposed to her heavy drinking in future and to violent disputation between her and Mr O, matters which have obviously caused discomfort to W in the past. I am also satisfied that these matters severely impacted on the mother’s parenting of the children, whilst they were living with her in N during much of 2004.
Mr and Mrs M are loving and competent grandparents. However, the reality is that they have no desire to assume residential parental responsibility for W and Z. Their real desire in these proceedings is to defeat any claim by Mr B, if at all possible. However, I am satisfied that it is likely to be in the best interests of both W and Z to have extensive contact with their maternal grandparents, particularly whilst Mr and Mrs M continue to live in N.
In addition, given the significant relationship between the children and the mother and D, it is appropriate that W and Z have as much contact with one another in school holidays and by telephone. Mr B needs to do far better in respect of telephone contact. The advantages of W and Z remaining in their present situation is that it will accord with their wishes and allow them to remain in a situation in which they are happy and doing well. The disadvantages can be starkly put. They will be separated from their mother and older brother. Undoubtedly their relationship with Ms O is significant. It is however not their only significant relationship. The evidence is clear that the children have had a very significant relationship with Mr B over many years.
Ms O, through her actions, has engineered the difficult situation which faces not only herself but also the children. She acted impetuously and in so doing, showed a poor understanding of the responsibilities of being a parent. There are other issues which have impacted, in the past, on her capacity to parent the children adequately. Mr B is not without failings as a parent but I am satisfied that he has risen to the challenge since W and Z came into his care. He is appropriately nurturing and caring for the children. Overall, I am satisfied that the positive aspects of the children remaining in Mr B’s care outweigh the significant negative ones.
Arrangements for contact between Mr B and Ms O will necessarily be somewhat strained for the foreseeable future. Ms O is likely to bitterly resent any suggestion that she should pay any monies in respect of the children’s travel costs between N and C. She herself is likely to remain a low income earner for the foreseeable future. For reasons already provided, I doubt that the “millions” from Mr B’s proposed aquaculture venture will materialise. However, the fact remains that he is in paid employment. In all these circumstances, I have reached the conclusion that it is appropriate for the parties to share equally the cost of the children travelling between N and C and return.
It seems to me that Ms O has not concentrated particularly on what orders she would seek if she is unsuccessful in her principle application for the children to live primarily with her. For obvious reasons, she has concentrated in her case on the residence issue, as indeed has Mr B. However, in his proposed orders, Mr B proposes, if he is successful, that the children should have two periods of contact with Ms O, during the mid year and end of year school holidays each year. I am concerned that this is not sufficient contact, given the close relationships involved. No doubt it is suggested because of the financial positions of each of the parties and so that Mr B can have some holiday time with W and Z.
Mr B proposes that the parties should have equal time with the children during both the long and mid year school holidays each year. This would mean that the children would spend a minimum of five weeks in the company of Ms O and D each year. In balancing the financial considerations involved and the desirability of the children spending a longer period with Ms O and D, I have come to the conclusion that it is appropriate for them to spend the entire mid year school holiday with Ms O and one half of the long school holiday. I will make other orders dealing with Mr and Mrs M having contact to the children whilst they continue to live in N. I can see no reason why it should not be overnight each week and I propose making the order from Friday after school until the following Saturday afternoon. I will also make an order allowing contact, in the unlikely event they remain in N, for a portion of the two shorter school holidays in each year.
For all these reasons the orders of the court will be set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 2 August 2005
10