Bailey and Cabell
[2011] FMCAfam 1020
•18 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAILEY & CABELL | [2011] FMCAfam 1020 |
| FAMILY LAW – Interim arrangements for care of children aged 6 & eighteen months – family violence – Indigenous parties – best interests – presumption of equal shared parental responsibility. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS BAILEY |
| Respondent: | MR CABELL |
| File Number: | ADC 2813 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 18 August 2011 |
| Date of Last Submission: | 18 August 2011 |
| Delivered at: | Broken Hill |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Apostle |
| Solicitors for the Applicant: | Broken Hill Aboriginal Family Violence Prevention Legal Service |
| Counsel for the Respondent: | Mr Burton |
| Solicitors for the Respondent: | Doyle Kingston Swift |
ORDERS
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The children [X] born [in] 2004 and [Y] born [in] 2010 live with each of the parties as follows:
(a)With the mother:
(i)from 4:00pm Friday until 4:00pm Sunday each weekend.
(ii)Each Wednesday from 4:00pm until 8:00am Thursday; and
(b)With the father at all other times.
The children be exchanged between the parties outside the [B] police station with the parties to engage Ms D to collect the children from the father and deliver the children to the mother at the [B] police station at the beginning of each period referred to in order (a) and return the children to the father at the [B] police station at the conclusion of each such period.
Neither party denigrate the other in the presence or hearing of the said children or permit any other person to denigrate the other party in the presence or hearing of the said children.
The parties are restrained and an injunction issue restraining them from consuming alcohol 24 hours prior to or whilst the children are in their care.
The child [X] continue her enrolment at the [A] School.
The parties are restrained and an injunction issue restraining them from removing the children from the area of [B] without the written permission of the other.
The matter be listed for final hearing before Federal Magistrate Cole on 23 & 24 February 2012 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer (Ms Christine Hafey) be appointed to represent the interests of the children [X] born [in] 2004 and [Y] born [in] 2010 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to the Legal Aid of New South Wales within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Aid of New South Wales or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Pursuant to section 91B of the Family Law Act, the Department of Community Services (NSW) is invited to intervene in these proceedings.
Pursuant to section 69ZW of the Family Law Act, the Department of Community Services (NSW) are ordered to provide to the court on or before 20 October 2011 the following documents:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released at least four (4) weeks prior to trial.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said children.
The solicitors for the parties forward to the Dispute Resolution Co‑ordinator, Federal Magistrates Court, Adelaide at least (7) seven days from the date of the order a copy of all documents filed with the Court on behalf of their respective clients.
Further consideration of the matter is adjourned to 31 October 2011 at 9:30am for further interim hearing.
IT IS NOTED that publication of this judgment under the pseudonym Bailey & Cabell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2813 of 2011
| MS BAILEY |
Applicant
And
| MR CABELL |
Respondent
REASONS FOR JUDGMENT
This is a difficult interim parenting case involving two young children, whose parents share a similar Indigenous background and where each asserts that the other is an inappropriate carer for the children because of issues to do with alcohol abuse and violence.
Ms Bailey “the mother” and Mr Cabell “the father” are the parents of [X], born [in] 2004 and [Y], born [in] 2010.
The parties met in [B] about 17 years ago. During their relationship, they lived in [B]. They separated in February 2011. Since their separation [X] and [Y] have lived with each of their parents for various periods of time.
At present they are living mainly with their father. This has been the situation since about April of 2011. Mr Cabell wishes this situation to continue. He proposes the two children see their mother on weekends.
The mother wants the children to live mainly with her and see their father on alternate weekends. There are many issues of fact in dispute between the parties. These proceedings are intended to settle arrangements for the care of [X] and [Y] until there is time to have a longer and more thorough hearing into the case.
Accordingly, this is what lawyers call an interim hearing. The outcome it will produce is not intended to be a permanent or final one. Interim hearings usually take place against a background of urgency and often involve significant disputes regarding factual circumstances.
So it is with this case. Since the parties separated, [X] and [Y]’s care has been marked by disturbance. There have been confrontations between the parties. The police have been involved. Each has obtained an apprehended violence order against the other.
The major areas of factual dispute between the parties concern the following matters:
·prior to separation, both Mr Cabell and Ms Bailey assert that he or she was the primary carer of [X] and [Y];
·the mother asserts that since separation the father has attempted to exclude her from the children’s lives through violence and intimidation;
·the father asserts that the children came into his care, with the mother’s agreement, because she was more interested in socialising and drinking;
·it is the father’s position that when he resumed the care of the children, they had been neglected by the mother because of her drinking;
·the mother says that the father’s care of the children has been substandard since April. She says that on 30 July she found [X] to be infested with head lice and to have sores all over her body;
·in addition, the mother says the father is a violent and antisocial person who has constantly beaten her during the parties’ relationship. She says this abuse has continued after the parties separated;
·on the other hand, the father categorises himself as having been the victim of the mother’s violent behaviour towards him, usually after she had been drinking. He says he only ever defended himself from the mother’s violence;
·the father acknowledges that he has battled alcohol addiction for many years, but asserts that his drinking is currently under control, in marked contrast to the mother;
·on the other hand, the mother described herself as a person who does not drink to excess. She says she believes the father is currently drinking heavily.
In short, both parties assert that they are the children’s main source of emotional support and have been for some time. Further, that he or she can provide a safe and loving environment for the children, in marked contrast to the other person, who has significant issues to do with violence or alcohol consumption.
Interim hearings do not usually provide a satisfactory mechanism for resolving factual disputes of this kind between parents. This is because interim hearings do not allow for cross-examination. In addition, there is not usually time to allow all relevant evidence to be collected and considered.
The most significant piece of evidence, which is not available at the interim stage, is in the form of a family report. This is an independent and expert evaluation of the children concerned, particularly in terms of their relationship with each of their parents. Necessarily, such reports take time to be prepared.
In addition, evidence in the form of subpoenaed documents from independent authorities involved with the family concerned, may not have been able to be collated. In this case, New South Wales Police and the Department of Communities and Families are likely to have relevant documents to the welfare of [X] and [Y].
Finally, it seems likely that there are other people, apart from [Y] and [X]’s parents, who are interested in the children’s welfare and have evidence relevant to their care and to this case.
I would expect that members of the children’s extended family would have much to say about this case. However, at this stage I have not received any evidence from members of either family.
Both Ms Bailey and Mr Cabell are Indigenous parents. Each has a large family in the [B] area. At this stage, the only evidence before me has come from the parents alone, apart from one discrete and controversial area.
The mother commenced these proceedings on 28 June 2011 in the Local Court at [B]. Her application was made returnable on 1 July 2011. The learned Local Court Magistrate did not make orders on this occasion, and transferred the proceedings to this court.
Both parties were at court on 1 July 2011, as was [Y]. It seems clear that there was an unfortunate incident between the parties, which was witnessed by an independent person, the father’s former solicitor, Ms Rachel Storey.
Ms Storey provided a statement to police. I have been provided with a copy of that statement by Ms Bailey’s solicitor. Ms Storey deposed that she was present at the [B] courthouse on 1 July 2011. She had been asked to represent Mr Cabell. The content of her statement is that she did not know Ms Bailey at the time. Mr Cabell had a young child with him, who must have been [Y].
Ms Storey has indicated in her statement that she is willing to provide the evidence it contains in court if necessary. She deposes as follows in her statement:
“As I was talking to [Mr Cabell], the small child walked away from [Mr Cabell] and walked over to a female who I now know to be the ex-partner of Mr Cabell, and the mother of the child,
Ms Bailey. She had just walked into the quad area from the street direction. [Mr Cabell] was still talking to me. The child approached the mother with her hands in the air and seemed to know the female. [Ms Bailey] cuddled the child and then picked the child up in her arms. I was sitting near the domestic violence room with [Mr Cabell]. I saw [Ms Bailey] walk into the court with the child in her arms. She walked out a short time later. [Mr Cabell] hadn’t noticed any of this and was facing towards me. Then [Mr Cabell] turned around and saw the female who I now know to be [Ms Bailey]. He muttered something. He appeared to be very agitated. He stood up and I couldn’t quite hear what he was saying, but as I could see he was agitated I said to him, “Calm down.” Then without any warning he walked quickly towards [Ms Bailey] and he was speaking angrily at her. He tried to grab the baby out of her arms. [Ms Bailey] didn’t let go and the baby squealed. Then with his right hand I saw him punch [Ms Bailey] in the face. [Ms Bailey] was still holding the baby. I called out to [Mr Cabell] and said, “Get out of this area, [Mr Cabell].” He went to grab the baby again out of [Ms Bailey]’s arms and also attempted to punch her again as she was still holding onto the baby. I said, “Just go.” At the time there were about 10 people in the quad area”.
The mother places particular weight on Ms Storey’s testimony. It is independent. Ms Bailey asserts that the statement demonstrates that Mr Cabell is a violent and controlling person, particularly in terms of her involvement with any of the children concerned. Finally, she says it shows that Mr Cabell is likely to have difficulty controlling his anger, as he resorted to violence in a public place, frequented by police and where people are usually at pains to be on their best behaviour.
Mr Cabell has been charged with assault in respect of the matter. He has pleaded not guilty and the charge against him is likely to be finalised in October. He points to the fact that Ms Storey’s evidence has not as yet been tested in court, and this is so. It is also his position that what Ms Storey has stated is not completely in line with what
Ms Bailey has said happened in her statement.
Both parties have an apprehended violence order against the other, granted in the period following their separation. Mr Cabell asserts that Ms Bailey punched him in the doorway of his home on 17 May 2011, assaulting him and breaching the apprehended violence order.
Ms Bailey was apparently charged in respect of the matter but the charge was dismissed in court.
I am told that the learned Magistrate concerned was of the view that given there was no independent corroborative evidence available, and that the case involved the word of one party against the other, it was not possible for the court to conclude beyond reasonable doubt that the assault had occurred.
There was also another incident between the parties on 30 July 2011 at the football ground. The mother says the father was hung over and verbally aggressive towards her in the presence of both children.
The father says it was the mother who was drunk and abused him and he only attended the football because the mother had broken an agreement to return the children to him earlier.
In support of the assertion that he was the children’s primary carer, prior to the parties’ separation, as a result of the mother’s socialising and drinking, the father relies on a number of documents he has obtained from independent sources. They are the [F] Indigenous Support Service and the [M] Health Service.
Mr M, who is the chairperson of the [F] Indigenous Support Service, describes Mr Cabell as a caring and loving dad. He also reports that Mr Cabell has been engaged in voluntary work for the service and has shown himself to be caring and considerate. He paints a picture of a person who is involved in the care of his children.
The mother’s position is that Mr M is a kindly person, who is likely to write a positive reference about anyone. The [M] Health Service has provided a letter which indicated that searches have been made of the electronic medical record of the service.
These apparently note that in respect of [X], she has been brought to the health service on 35 occasions, and on 19 occasions it has been noted that she had been brought in by her father. These apparently have been more frequent in the recent past, 19 occasions since May 2009.
In respect of [Y], she apparently has attended the service on 17 occasions, and in respect of eight of these it is noted that she has been brought in by her father and that issues have been discussed with the father. It has been noted on two occasions in April of 2010 and May 2010 that Mr Cabell seems to be the main carer of the two children.
Accordingly it is Mr Cabell’s submission that this record indicates that he is likely to be the children’s main provider of care because it shows that when the children have been ill or upset it is he who has been responsible for seeking medical treatment for them.
Mr Cabell also relies on a reference from Mission Australia, which indicates that he is participating in a program called the Brighter Futures program, which is a program which assists persons with life skills, including parenting and homemaking.
On 14 April 2011 the father and children moved into [Property M]. [X] has been enrolled at the [A] School since this time. [A] School is very near [Property M]. Mr Cabell has obtained a report from the principal of the school which indicates that [X] has been consistent in attending school and appears to be a happy and well cared for child.
The principal indicates that from his understanding, Mr Cabell has been the sole parent and carer for [X]. The principal speaks highly of Mr Cabell and indicates that he has met all requests that have been made of him in respect of [X]. Again, the father asserts that this letter supports his claim that he has been the children’s main carer.
Apart from the mother’s assertion that she has been the children’s primary carer, there is little independent evidence to support this assertion. I note, however, that in the letter from [M] Health Service, that the mother’s Medicare number is the one that is used for [Y] by the health service, whilst the father’s is used in respect of [X].
It is also the mother’s evidence, and this appears in paragraph 34 of her affidavit, that:
“[Mr Cabell]’s relationship with the kids is not very good. [Mr Cabell] doesn’t have much patience. While [Mr Cabell] and I lived together during the final part of our relationship, he would drink a lot and would get angry and violent very quickly”.
I appreciate that it is not unusual for the mother to be in a position where she is not able to provide independent evidence regarding her role with the children. That is, one of many areas of difficulty in this case.
Ms Bailey has two children from an earlier relationship. They are [J], aged 19 and [K], aged 17. Mr Cabell regards himself as being a father to these children as he has been involved with each of them since they were small.
At present [K] is living with Mr Cabell and [X] and [Y] at the [Property M] property. Mr Cabell asserts that this state of affairs demonstrates he is the more stable of the two parents concerned, as [K] has preferred to live with him.
Ms Bailey is living in Property H which is north of the central [omitted] town area. She is living with her mother. She has described this property as being a “large and comfortable” one.
The mother also says she has heard on the “Koori grapevine” that
Mr Cabell is drinking to excess at present and wants to have the children so he can have greater social security payments in order to finance his drinking. The father has levelled a similar accusation against the mother in respect of her past behaviour, particularly during the parties’ relationship.
In respect of the evidence of the parties’ mutual level of their drinking, there is no independent evidence to corroborate either party’s account. Again, that is not something that can be regarded as unexpected. There is no evidence from an independent person who says that he or she has seen Mr Cabell or Ms Bailey under the influence of alcohol.
I have not been provided with any subpoenaed documents which indicates that there’s been involvement because of alcohol consumption by the parties with any independent authority.
In addition, the evidence about what happened following the parties’ separation is far from clear. However, immediately following separation Mr Cabell went to Albury, in his words “to clear his head”. It is his position that he ended the parties’ relationship because he could no longer cope with the mother’s violence and drinking.
It is unclear to me how long the father was in Albury, but the fact that he left [X] and [Y] behind in the mother’s care suggests that he did not then have pressing concerns about her capacity to provide care for them. The period he was away is to be measured in weeks rather than months.
On his return, which Mr Cabell says was caused by him learning that [X] had accidentally swallowed some of his anti-depressant medication, the children came into his care, most probably at some time around mid-April.
The mother asserts that when he had returned from Albury, in effect the father insinuated himself into her home in [Property G] and then intimidated her to such an extent that she had to flee to [W]. She does, however, agree she informed Centrelink that Mr Cabell had the care of the children, but says she did so in order to help Mr Cabell get a house for himself.
The father says that the mother voluntarily “signed over” the children to him because she was sick of being tied-down by family responsibilities.
At one stage the mother did take the children to [W]. The father says this was a disaster for their care as when he resumed their care, voluntarily so far as the mother was concerned, it was obvious that each of the children had been neglected.
Ms Bailey says that while she was in [W] Mr Cabell trashed her former house in [Property G] and stole her furniture there. Mr Cabell denies these allegations, but I suspect that these matters are a source of friction between the parties.
Neither party currently drives or has access to a car regularly. Both walk into [B] or catch the local bus. Whatever is the outcome of this case, it seems clear that the children will have to be exchanged between their parents in a safe and controlled manner.
Regrettably, there is no contact centre in [B]. The parties recognise that it is probably best that the children be exchanged at a neutral and secure place and the [B] police station has been suggested.
Prior to this hearing commencing, I asked the parties via their solicitors if they could think of a neutral person who could ferry the children backwards and forwards between them and Ms Bailey’s sister – a person known as Ms D – has been nominated by each of them. This seems to me to be a positive development.
I now turn to the legal principles which I have to consider in this matter. The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of any children concerned. Whereas final hearings do. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making any interim decision – as at the final stage – the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both of their parents. The second is the need to protect the children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and they are reiterated as the primary considerations in how a Court determines what is in a child’s best interests in section 60CC(2).
There is a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility for their children – [section 61DA]. However, this presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
In addition, the Court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied, [see section 60DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[1] the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[1] See Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
As this summary indicates, the law applying to children is complicated. However, I must turn my mind to the various section 60CC factors before coming to the presumption and then an ultimate decision as to what is likely to be in the best interests of the child or children concerned.
In this case, it appears to me that it is likely that the children currently have a meaningful level of relationship with each of their parents. It seems clear that Mr Cabell has been involved with the children since the parties separated.
However, prior to that time it would also appear to be the position that Ms Bailey has been involved with providing care for the children. The parties were living in the same household for the vast majority of the children’s lives.
Although it is a small matter, Ms Storey reports that [Y] approached her mother outside the courthouse and from Ms Storey’s evidence seemed to know her mother. Accordingly, it seems to me likely that both children will benefit from being able to spend significant periods of time with each of their parents.
However, in this case, the other primary consideration is also highly relevant. Ms Storey’s statement indicates that [Y] was exposed to an episode of quite significant violence. It happened in a public place where one would expect that the parties would be at pains to keep emotions under control. If Ms Storey is to be believed, the mother was not doing anything unusual or provocative other than interacting with daughter.
Family violence is a significant thing so far as children are concerned because obviously children learn their behaviour from those surrounding them. In addition, if one parent uses force against another parent and hurts a person to whom a child is close, this is likely to be very emotionally destabilising for the child concerned. For those reasons the legislature has seen fit to emphasis the corrosive effects that family violence can have on children.
In terms of the additional considerations, clearly I have no evidence about the views of the children concerned and they are each perhaps too young to be able to express any view, particularly [Y]. As I have already observed it seems to me that the children are likely to have a significant relationship with each of their parents.
In addition, it would seem to me that there are likely to be lots of other people who are significant to these children. They include their older sibling [K]. I have to consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Children benefit from knowing and spending time with their parents. The mother places significant emphasis on this factor.
It is the mother’s case that Mr Cabell is very possessive of the children and has demonstrated this by his behaviour, particularly outside the courthouse. From Mr Cabell’s perspective, he asserts that he is the victim of the mother’s violent behaviour more so than vice-a-versa.
Again, there is no evidence to corroborate his assertion of this fact. But, given its nature, family violence invariably occurs behind closed doors and although statistically men are more likely to be the protagonists of family violence, it is not unknown for women to be physically abusive towards men.
In addition, family violence can take many forms. It is again not unknown for both the members of a couple to be mutually violent towards each other, particularly when both have issues to do with the consumption of alcohol.
At this stage it is difficult for me to make any concluded findings about the nature of the parties’ relationship. The only independent evidence is from Ms Storey. I suppose the question for me is, if I am of the view that Ms Storey’s untested evidence alone is of such significance, that I should significantly change the arrangements for the children’s care at this stage.
In making these deliberations I have to consider what are the likely effects of any changes in the children’s circumstances which will occur from any order I make, particularly in terms of the children being separated from one or other of their parents. The evidence from
Mr Cabell indicates that the children, particularly [X], seems to be doing well at the [A] School.
At this stage, I would be loathe, I think, to embark on any significant changes in respect of her education. The evidence from the [M] Health Centre does indicate that the children’s health needs are being attended to.
I have to think about the practical difficulty and expense of the children spending time with each of their parents. For the reasons I have outlined, the parties’ parenting relationship is under an enormous amount of pressure at the current time.
Although the parties live fairly close together in a remote country town, there are many practical difficulties in regard to the children being exchanged between them, the major one being how this can occur safely without there being an altercation between the parties. And, as I say, I’m pleased that Ms D has been nominated as a person who can undertake the task of exchanging the children between the parties.
I have to consider the capacity of each of the parents to provide for the children’s needs, including their emotional and intellectual needs. In conjunction with this consideration I have to make some appraisal of the attitude that each of the parties has demonstrated to the responsibilities of being a parent.
I suppose this must turn on who ultimately is likely to be regarded as the children’s primary carer. At this stage I simply am not in a position to say. What I think is significant is that both parties say that the other has neglected the children, but there is very little independent evidence to support that assertion. However, the medical material and the material from the children’s school does indicate that the children’s health and their educational needs are being met.
The mother’s case is that the father has shown himself to have a derelict attitude to being a parent because of his poor attitude towards her. Similarly, the father says that he has been consistently abused by the mother. I simply am not in a position to make findings about this significant matter.
However, in this case, I have little difficulty in coming to the conclusion at this interim or provisional stage that it would be inappropriate for the presumption of equal shared parental responsibility to be applied.
It appears to me to be probable that family violence has occurred in this family and the children have been exposed to it. However, what I am uncertain about is who has been the principal proponent of that violence and what is its exact nature.
That takes me back to my consideration of the various section 60CC factors against this background of many untested and unverifiable assertions made by each of the parties about the unfitness of the other parent.
I have come to the conclusion that at this stage, given the serious allegations that each party has made against the other, that it is appropriate that both children be independently represented in this case.
The function of the Independent Children’s Lawyer will be to gather evidence independent of the parties about the matters and issues that have been raised. In addition, such a person can act as an honest broker between the parties.
In addition, I have come to the conclusion that this is the sort of case which requires an urgent family report. I hope that will be available by the time of the next circuit at Broken Hill, which is scheduled to be in the first week of November.
I propose inviting the Department of Families and Communities to be involved in these proceedings and to provide evidence of any notifications of child abuse which have been received. Accordingly, I am putting in place steps which I hope will gather more evidence which will be of assistance to untangle many of the issues in dispute between the parties.
I am also very aware that both [X] and [Y] are Aboriginal children. Accordingly, they have a right to enjoy their culture and spend time with the people who are involved in that culture. As I say, it is my suspicion, as yet unresolved, that the children are likely to have been cared for by several people within their extended family, and that factor is likely to be assisted in its investigation by an independent family report.
At this stage I think I have to be cautious about any wholesale changes in the arrangements for the children’s care, notwithstanding my very serious concerns about what happened at the courthouse on 1 July 2011. However, against that, it seems to me that the children need to spend time consistently with their mother, provided that the handover can be done in a safe and controlled way.
On balance, I have come to the conclusion that it is likely to be useful and of assistance to the children that they continue to attend – or [X] continues to attend [A] School and that she remains significantly in the care of her father, but spend substantial and significant periods of time with her mother.
What I have in mind is an arrangement which will see the children in effect spending three evenings with their mother and the remainder of time with their father. This arrangement will be in place for about
10 weeks until the matter can be revisited when the Independent Children’s Lawyer has been appointed and there has been a family report prepared.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 18 August 2011
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