BARNHAM & BARNHAM

[2010] FamCA 48

FAMILY COURT OF AUSTRALIA

BARNHAM & BARNHAM [2010] FamCA 48

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286
M and M (1988) 166 CLR 69

APPLICANT: Mr Barnham

RESPONDENT: Ms Barnham

FILE NUMBER: ADC 4433 of 2008

DATE DELIVERED: 29 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 29 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LOVERING

SOLICITOR FOR THE APPLICANT: NEVETT FORD LAWYERS

THE RESPONDENT: IN PERSON

Orders

1. That by Sunday evening 31 January 2010, the husband put the child J born … March 1998 upon a bus service to return him to the wife at B in South Australia such that J will arrive in the early hours of Monday 1 February 2010.

2. That the application of the husband seeking final orders filed 15 January 2010 and the response thereto of the wife filed 29 January 2010 be adjourned for further hearing in the Adelaide Registry of the Family Court of Australia on a date to be fixed by the Registrar.

3. That the application of the husband seeking interim orders filed 15 January 2010 be otherwise dismissed.

4. That the reasons for judgment be placed upon the file and released to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 4433  of 2008

MR BARNHAM

Applicant

And

MS BARNHAM

Respondent

REASONS FOR JUDGMENT

1. There are four children of Mr and Mrs Barnham.  They are K born in August 1992, Y born in May 1994, H born in February 1997 and J born in March 1998. 

2. J is the only child who is the subject of the dispute before me.

3. These reasons only deal with the immediate interim issue.

4. On 15 January 2010, the father filed an application for interim and final orders. The interim orders sought included that orders made by the Family Court of Australia at Adelaide on 4 May 2009 be suspended. He sought that both H and J live with him and that there be an indeterminate time between both those children and their mother. A variety of other orders were pursued including an order that pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) the relevant welfare department intervene.

5. The wife responded by filing a response on 29 January 2019.  She did not seek interim orders but her final orders were effectively that the matter be transferred to the Adelaide Registry and that both J and H live with her. 

6. Although the application sought orders in respect of both H and J, it was common ground between the parties that the husband had not seen H since February 2009.

7. The only question is really therefore whether J stays in regional Victoria with the husband or returns to B in South Australia with the wife.

8. It will be evident that there is a complicated and tragic litigation history in the Adelaide Registry culminating in the orders of May 2009. 

9. Throughout the proceedings before me, the husband was represented by Mr Lovering of counsel and the wife appeared without legal representation.

10. The matter was listed on 22 January 2010 before Senior Registrar FitzGibbon at which stage orders were made for the wife to file her material and that there be an appointment of an Independent Children’s Lawyer. 

11. On 29 January 2010, the Senior Registrar transferred the matter to me.

12. In short compass, what gave rise to the issue in dispute was a statement by J in a motor car on 31 December 2009 in which he alleged to the stepmother, the new wife of the husband, that his mother had beaten him.

13. J was in the care of the husband for one half of the school holidays and as will be seen from the orders of 2009, that contact was only to occur according to the wishes of J.  I must therefore conclude that J wanted to be with his father.

14. It was common ground between the parties that J was due back with his mother on 16 January.  I can only therefore conclude that there was an overholding.

15. Subsequent to J’s complaint to his stepmother, the husband enrolled him for counselling with CASA and one appointment had been undertaken.  The wife was unaware of that.

16. On the other side of the border, the wife had organised for J to have an appointment with CAMHS but because of the fact that he was in Victoria and overheld by his father, that appointment was missed.

17. The wife’s response about the future was that if J wanted to live with the husband, she would “live with that” but she wanted the decision to be made after consultation with the professionals.  The professionals in this case have a significant role to play because of the nature of the dispute within the family.

18. The husband adopted a similar but not quite so emphatic response.  I am not entirely sure what view the husband would take if J said that he wanted to live with his mother.

19. The immediate issue in this case is the risk (if any) to J if he is returned to the wife. 

20. Notwithstanding the very voluminous affidavits filed by both parties, many of the issues did not affect the decision I was about to make.

21. I have already set out the incident that sparked the dispute which was encapsulated in the affidavit of the husband’s new wife.  The stepmother expressed concern about her husband’s son Y and his threat to the other children and in particular, her own children.  Y is not currently a member of the wife’s household because he is in the care of Families South Australia.  He is currently facing serious charges in the Victorian Court later this year.

22. The stepmother also referred to the fact that she had concerns about J attending the father’s home without his reading glasses as a result of which they had to buy another pair.  She said that she had taken him to the family doctor to “ensure that he was medically okay”.  She also referred to the appointment with CASA mentioned above.  It seems this was all without reference to the wife.

23. The evidence that she gave in relation to the incident that gave rise to the question of the risk was as follows:

    On 31 December 2009 [J] revealed to me whilst driving from [the regional centre] to [the father’s home] that he wanted to live with [the husband] and myself.  [J] expressed concern with living with the Respondent (the wife) and disclosed that the Respondent had physically punished both himself and [H], more so [H], by slapping, and punching them, and had tried to strangle [H] whilst sitting on top of him.  [J] further stated that he and [H] considered calling the police but there was no way of doing so.  [J] said that there was bruises to [H’s] neck, shoulder and chest.

24. Although this particular statement was repeated by the child to his father at a later time, no evidence was given by the husband as to when the incident actually occurred.  It was difficult to get a temporal sense of the timing.  When I questioned the wife about that situation, she said it had occurred in October and she made reference in her affidavit to the fact that she had discussed the issue with a social worker from the welfare department on the following day.  The husband’s retort was that the matter had been handed to the police but the wife denied any knowledge of that.

25. The husband’s comprehensive affidavit filed 15 January 2002 set out his concerns about endeavouring to have an ongoing relationship with his children.  All of that may be attributable to poor communication between the parties but it does not affect the decision that I am making today.  Importantly, most of those complaints relate to the period prior to the making of the final orders in 2009. 

26. The husband set out in some detail all of the endeavours that he had made subsequent to the making of the 2009 orders trying to continue his relationship with the child J.  Those matters will no doubt become issues when the hearing is undertaken in earnest because a court will not only be looking at the question of parental responsibility but also the question of whether or not parties have facilitated the ongoing relationship with the other parent.

27. The husband went on to say his concerns about the circumstances under which the wife was living with the children.  He suggested that there was an absence of telephone and power and that the children were living in a caravan.  The wife responded to all of those issues.  Some were denied and some were explained in a plausible way.  For reasons to which I shall refer in relation to the legal matters, I am not in the position to make any findings of fact.

28. The husband went on to refer to the incident in which J had complained to the stepmother and said that J told him that he did not feel safe in returning to his mother’s care as he was worried:

    that her violent behaviour is getting worse and she will punish him once she finds out that he has told “the husband”. 

    He said that J worried for the safety of H.

29. The husband then went on to refer in some detail about how he would care for both H and J.

30. The wife’s affidavit was equally long.  Much of the material was historical and unhelpful.  She said that she was consistently harassed, intimidated and chastised by the husband for the way the children behaved.  It must be seen as a concession that there are difficulties with the behaviour of the children.

31. It was abundantly clear from the wife’s material that the relationship between she and the husband is virtually non-existent.

32. The wife said that H was receiving ongoing support from a psychologist in South Australia and had had a consultation with a psychiatrist.  He had been diagnosed with post traumatic stress disorder and mild conduct disorder.  She said that the husband had been invited to participate in H’s recovery but he was unwilling to do so.

33. The wife annexed a copy of H’s school details.  It could not but be obvious that there was little information about J.  That is not a criticism because it was clear on the husband’s material that he was also seeking that H come to live with him.  On an interim basis and having regard to the nature of the husband’s relationship with H since February 2009, the husband’s application was unrealistic.

34. Notwithstanding the husband asserted that H had not attended school during 2009, the wife denied that and said that he was on a modified education program initiated by the school principal. Hence she annexed H’s school reports. 

35. In respect of the dispute between she and the husband, she confirmed that there had been angry telephone discussions.  These parties need to put down the cudgels and start to realise the damage that is being done particularly to someone like J who must be conscious of the dispute going on.

36. Importantly, in respect of the incident referred to by the husband and the stepmother, the wife said that she believed the incident to be one in which H was asked to do his chores after school and refused.  When asked to do so again, H shoved her against the wall and threatened her with a closed fist.  H, according to the wife, has threatened violence in the past as well as shown self-harming behaviour.  She said that he ran to his bedroom where she managed to restrain him and administer sedative medication.  She said afterwards he calmed down and apologised to her and also to J.  She said that H had light bruising from the hard surface floor and she had bruising to her chest and arms from H shoving her.  She said she did not use physical harm as a means to discipline the children and talked through things wherever possible.  Importantly also, she said she rang the relevant social worker at the department on the following day and told her about the incident.

37. When I questioned the wife about the outcome of that, the wife said that things were done to the satisfaction of the relevant social worker. 

38. I would have to find on that material that the explanation by the wife was plausible if it related to the same incident to which the husband was referring.  As I earlier mentioned, the difficulties lie with the temporal connection.  No doubt in the fullness of time, inquiries will be made of the social worker and the police to see who is telling the truth.

39. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC sets out how that should be done. I shall refer to the relevant provisions below.

40. Section 60CG  requires the Court to consider the risk of family violence. On the basis of the evidence above, I do not find there is such a risk.

41. Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, when the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate. Specifically, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. I shall turn to that further below.

42. The provisions set out above apply because this is a parenting order despite the fact that it is of an interim nature.

43. The interim orders I make here are holding orders to govern J’s position until the final hearing. The parties are aware of my concern about the fact that they may want to re-run the interim issue and that a Court may say that these reasons deal with those urgent interim matters.

44. In Goode and Goode (2006) FLC 93-286 the Full Court made clear that an interim hearing is an abridged process where the scope of the enquiry is curtailed and as such, the Court is limited in its ability to make findings of fact. That is what I am doing here.

45. Whilst Part VII points to Parliament’s intention about involvement of both parents in children’s lives, it must be subject to the need to protect children from harm by reason of abuse and violence (see s 60CC(2)).

46. A well settled environment may and in some cases, must, be investigated even on an interim basis if there is a risk of physical or emotional harm to a child. However, the Court can only determine those matters on the evidence assessed according to the balance of probabilities.

47. In this case, what I am assessing is the risk to J of remaining in his mother’s care based upon the statement that he made to his stepmother. The surrounding facts may be cause for long-term concern and even dissatisfaction by the husband with the wife’s parenting capacity and responsibility. In this case however, they are disputed facts and relate mostly to problems with his communication with the children and his dissatisfaction with the children’s environment. That evidence needs to be tested.

48. The court is required to give consideration to the relevant s 60CC matters. I shall do so below. 

49. The risk of harm has always been a concern of the courts.

50. In M and M (1988) 166 CLR 69 the risk of harm was about sexual abuse but it applies also to any risk of harm concerning abuse of children. The High Court of Australia said a number of matters to which I now turn:

    The Court is concerned to make (such) an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. 

    …

    …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child.  …  The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

    …

    In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.  Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.  But that is not the issue in this case.

    …

    To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’

51. On the basis of the evidence as presented, I am left with a doubt as to the circumstances under which J made the complaint. Importantly, I am left unclear as to when the supposed “punishment” or grappling between mother and J or H occurred. The father said it was early December and it ended up in the hands of the police. The mother said she thought it was October but that the matter ended up with the department’s social worker. She said she was unaware of any police involvement.

52. The father has not established to my satisfaction on that evidence that there is an unacceptable risk of J continuing to be cared for by his mother.

53. In so far as the s 60CC factors have relevance here, my observations must be vague.

54. The wife said that J was a very advanced boy for his age and that she knew he wanted to live with his father. Whether that should be after consideration by professionals assisting the family and the Court remains to be seen. I could not at this stage find that J has a clear wish that should be accepted by the Court.

55. The nature of the relationship between the parents and J as well as that of his siblings is not clear on the affidavit material. However, I can draw some conclusion that for the most part it is good because orders of a final nature were made in 2009 which kept the children together as a family excluding Y.

56. The issue of parental responsibility and capacity of parents to meet the needs of the children is of concern. Much evidence is considered when deciding those issues but in this case, I have two parents who did not discuss the issue raised by J. The response to J’s statement was to get counselling for him and to litigate. That makes me wonder what approach should have been taken by the husband. I suspect that even had he endeavoured to raise the issue with the wife, he would have been rebuffed. The wife said that she had organised the counselling for J in B in South Australia. Did she tell the husband about that? I doubt it.

57. To also remove J even temporarily from his usual home environment could also put the child in the position of deciding what is good for him. That is a parenting responsibility. If J is playing one parent off against the other, the lack of communication between the parents can only exacerbate that.

58. I am also troubled that J may not have considered his relationship with his siblings. Separation from them and his mother in these circumstances can only heighten the tensions between the children as well as potentially damage the relationship between the mother and J. The parents need to think about who is making the decision here.

59. A primary consideration is the benefit to the child of having a meaningful relationship with both parents.  The affidavit material is replete with complaints about the fact that the husband cannot have such a relationship with his son but it also highlights the importance of the Court and the parties on focussing on the word “benefit” to the child. What is in this dispute for J? I suspect little and if he thinks he has been empowered by being dragged into a parenting dispute by accusing his mother of something that has an innocent explanation, the parents need to step back and realise that they are setting this child up for a very confused future where he will decide what is best for himself in an ignorant childish vacuum. The parents must resolve the issue properly and tell J that that is exactly what they intend to do. I expressed that to the parties in court.

1. I highlight that there is a need to protect J from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In making this decision, I find that there is not sufficient evidence that would satisfy me that such exposure has occurred. That exposure may however happen by the child being brought into the dispute between his parents both wittingly and unwittingly.  The parents must again remove J from their dispute.

2. I do not have to determine matters associated with equal shared parental responsibility applies when making this interim order because, leaving aside issues of the capacity of the parents to discuss the very issue that brought them before the Court, I could not be satisfied that it is in J’s best interests for there to be an order that would then give rise to dealing with the questions of time.

3. It goes without saying in any event that geographical distance would preclude the parents from that sharing of time.

4. I find in the circumstances that it would be in J’s best interests to go home to his mother and the issue of the urgency of a hearing is a matter for the judiciary in Adelaide. I have indicated my concern that the case needs attention urgently but others may have a different view of the proper use of judicial resources. On any view, the parties have much homework to do to satisfy any court that they have J’s best interests at heart in this litigation. 

I certify that the preceding Sixty Three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 January 2010