Belgrove and Belgrove
[2016] FCCA 3476
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELGROVE & BELGROVE | [2016] FCCA 3476 |
| Catchwords: FAMILY LAW – Parenting – High conflict relationship – where children exposed to parental conflict. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MR BELGROVE |
| Respondent: | MS BELGROVE |
| File Number: | WOC 1071 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 15 December 2016 |
| Date of Last Submission: | 15 December 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Verekers Lawyers |
| Solicitors for the Respondent: | Autore & Associates Solicitors and Barristers |
| Solicitors for the Independent Children's Lawyer: | Carter & Ferguson Solicitors and Attorneys |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
From the time the child X, born (omitted) 2011 (‘X’) commences school the children X born (omitted) 2011 and Y, born (omitted) 2012 (‘Y’) live with the Mother.
From the time the child X commences school, the children spend time with their Father as follows:
(a)Commencing from the first weekend after the commencement of school term 1 2017:
(i)on the second and third weekend of each 3 week cycle, from Friday after school to Monday before school;
(ii)Half of each school holiday period failing agreement for the first half from school on the last day of term to 5:00pm the second Saturday of such holidays;
(iii)Such further and other times as agreed between the parties.
(b)On the following special occasions:
(i)From 9:00am Christmas Eve until 3:00pm Christmas Day in 2017 and each alternate year thereafter;
(ii)From 3:00pm Christmas Day until 5:00pm on Boxing Day in 2018 and each alternate year thereafter;
(iii)At other times as maybe agreed in writing between the parties from time to time;
(c)The Father's time with the children be suspended on special occasions as follows:
(i)From 9:00am Christmas Eve until 3:00pm Christmas Day in 2018 and each alternate year thereafter;
(ii)From 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2017 and each alternate year thereafter;
(iii)At other times as may be agreed in writing between the parties from time to time;
For the purpose of facilitating the Father's time with the children, and except when the children are collected from or delivered to school, the Father will collect the children from the home of the Mother or in the alternative the (omitted) Shopping Centre at the commencement of time and the Mother will collect the children from (omitted) Shopping Centre, or such other place as agreed, at the conclusion of the Father's time with the children.
Within 14 days of these Orders being made the parents do all such things and sign all such documents as may be necessary to ensure that the child X be enrolled into (omitted) School commencing 2017.
The Mother be restrained by injunction from using physical force upon the children when disciplining them.
The Mother do all things to ensure that no other person physically disciplines the children.
Before the commencement of Term 1, 2017, the Father be permitted to travel with the children to (country omitted) for a period not exceeding seven (7) days for the purpose of visiting the father's 85 year old father with the father to provide reasonable details of planned travel arrangements to the mother at least fourteen (14) days prior to travelling to (country omitted).
The Father be restrained from photographing or video-recording the children for any purpose directly or indirectly related to these proceedings.
Pursuant to s.68B of the Family Law Act 1975, the parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
The Mother is to enrol Y in pre-school in 2017 and to inform both the Father and the Independent Children’s Lawyer of where he has been enrolled and for how many days weekly and she is restrained from changing that enrolment without the consent of the Father and the Independent Children’s Lawyer.
The matter be stood over to the adjourned date of 4 May 2017 at 10.00am.
THE COURT NOTES THAT:
A.These Orders are intended to operate from the time X commences school in 2017 insofar as they relate to where the children live and when they spend time with the other parent. Until then, the existing Orders for where the children live and when they spend time with the other parent continue. Orders 4,5,6,7,8,9 and 10 are operative immediately.
IT IS NOTED that publication of this judgment under the pseudonym Belgrove & Belgrove is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1071 of 2015
| MR BELGROVE |
Applicant
And
| MS BELGROVE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, who is five, and his brother Y, who is four. Mind you, when I say that this case is about two children, the way in which their parents have conducted this litigation would easily create the impression that it is not about the children at all, but rather about them. What is clear beyond doubt is that the parents do not trust each other, attribute the worst motives to each other and cannot communicate with each other. Their singular focus appears, at least to the Court, to be on winning this case and not on their children.
This power struggle between the parents continues and the children are innocent victims. This litigation has been going on for over a year. The first order was made on 9 November 2015. It provided that the children spend time with their father each Thursday from 5 pm until Sunday at 5 pm. The next order was made on 17 December 2015 and it dealt with Christmas Day and the school holidays. The next orders were made in March 2016. The March 2016 Orders provide for the children to live with their mother but to spend time with their father from 5 pm on Tuesday until 5 pm on Friday each alternate week and from 10 am on Thursday until 5 pm on Sunday in the other week.
This is the Order that is in place at the moment. It is a shared care arrangement in which the children spend six nights and seven days with their father. With the benefit of hindsight, one wonders how this arrangement could ever have been considered to be appropriate for X and Y. X commences school next year. His parents cannot decide where he should go to school. His mother, who lives in (omitted), wants him to go to school there. His father, who lives in (omitted), wants him to go to school there. Given the geographical distance that separate the homes of the parents, the existing shared care arrangement is no longer practical.
The Court observes, however, that the greatest barrier for these children is not a geographical one. It is not the distance between their parents’ homes. The greatest barrier for these children is, in fact, the vast psychological distance that exists between these homes. It is clear that both parents have a different approach to parenting and different values. The greatest threat to these children is in their respective parent’s homes. It is not a physical threat. It is a psychological threat. This matter is listed for hearing in May 2017. An expert has been appointed to prepare a report and that will be ready before the final hearing.
This is a case which, in this Court’s opinion, needs to have the evidence thoroughly tested before a final decision can be made. It is most regrettable that the Court is forced into a position where it must make a significant decision about the children’s lives without the benefit of the evidence being tested properly. This is a finely balanced case.
The Proposals
The Father’s proposal is contained in his case outline and in the Response to an Application in a Case filed 30 November 2016. The Mother’s proposal is contained in her case outline and in her Application in a Case filed 28 November 2016.
The Independent Children’s Lawyer’s proposal is set out in her case outline and, for all practical purposes, the Independent Children’s Lawyer supports the Father’s proposal.
Material before the Court
The material before the Court consisted of the following:
a)Application in a Case filed by the Mother on 28 November 2016.
b)Affidavit of the Mother sworn 28 November 2016.
c)Response to an Application in a Case filed 30 November 2016.
d)Affidavit of the Father filed 30 November 2016.
e)Affidavit of Mr G filed 8 December 2016.
f)Affidavit of Ms D filed 8 December 2016.
g)Affidavit of Ms K filed 11 November 2016.
h)Affidavit of the Father filed 9 December 2016.
i)Child Dispute Conference Memorandum dated 3 December 2015.
The following subpoena material was tendered:
| Exhibit No. | Description of Exhibit/MFI |
| ICL1 | NSW Health documents |
| ICL2 | FaCS documents |
| ICL3 | NSW Police documents |
| ICL4 | (omitted) Medical Centre documents |
| ICL5 | Dr O documents |
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed “Equal time" and provides:
“If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.The Court’s approach to determining this case, as difficult and as finely balanced as it is, is to have regard to the primary and additional considerations set out in section 60CC of the Family Law Act insofar as they are relevant and to seek to apply the material before the Court in so doing. The Court must have regard to whether these children have a meaningful relationship with their parents. That is unquestionably the case. None of the proposals before the Court are - even though they would substantially depart from the existing shared care arrangement - would change the fact that the boys do have a meaningful relationship with their parents.
Risk of Harm?
The Act requires the Court to consider risk of harm considerations. These considerations figured quite largely in the Father’s case, supported by the Independent Children’s Lawyer. That case is, in effect, that there is a risk of harm to the children and that warrants making the change proposed by them, which would see the children live primarily with their father in the (omitted) area. As it is, and having considered the material before the Court carefully, the Court does not accept that there are any risk of harm concerns so far as these children are concerned.
Indeed, the Court’s far greater concern is about the continued exposure of these children to the intense conflict and acrimony that is displayed by their parents and the deeply held attitudes that seem to pervade this conflict.
There are a number of reasons why the Court has concluded that there are no risk of harm considerations as contended against the Mother. The first point that the Father’s stated concerns are plainly inconsistent, not only with the current proposal that he advances to the Court, but, indeed, with each of the proposals that he has advanced in this litigation so far and, indeed, in the consent orders that he has agreed to.
Nowhere in the orders proposed by the Father in his case outline filed 12 December 2016 does he propose that the Mother’s time be supervised or that she obtain treatment for her supposed mental health issues or that she comply with advice given to her by her doctors, or that she be medication compliant. In fact, what he does is propose that the children spend time with her without restriction each alternate weekend from after school on Friday to before school on the following Monday. He also proposes half the school holidays.
Given the extent of the mental health concerns that the Father has about the Mother, his proposal is plainly inconsistent with this. The Father expresses concern about the behaviour of the Paternal Grandparents and other members of the paternal family, but nowhere in his proposal is there any attempt to restrict their time with the children. The only restriction is that the Mother does not use physical force on the children when disciplining them, and that she ensure that no other person does so, a relatively benign restriction given the seriousness of the allegations that the Father makes.
There is a further inconsistency between the evidence of the Father and what his action is. For example, in his affidavit of 30 November 2016, he refers to concerning disclosures made by X in mid to late August and by Y in September. We know that the disclosures were made by the boys to both the Father and his sister on 1 September 2016. The Father took a photograph of a bruise to X on 20 May 2016. None of these serious allegations are raised with the Mother in a timely fashion. The implied assertion, of course, is that either the Mother caused these injuries to the children, or that some other member of the Mother’s family caused these injuries to the children, or that they are somehow evidence of neglect.
These are very serious allegations that are articulated for the first time in the Father’s affidavit of 30 November 2016, notwithstanding the multiple prior affidavits and the interim events before this Court. This is, plainly, inconsistent with the Father’s stated concerns. There is a sense in which these disclosures are presented to the Court opportunistically.
The Father raises concerns about the Mother’s mental health. What is clear is that the Mother had a psychotic episode in 2007. There is evidence from the hospital to which she was admitted about this. The event took place nine years ago, before the relationship between the parents. Clearly the Mother had a mental health crisis, but the documents confirm that it was a situational crisis consequent on the breakdown of a relationship. The manner in which the Father deposes to his concerns about the Mother’s mental health in his affidavits and then, creatively - or perhaps miraculously - links it to her psychotic episode nine years ago, is almost bizarre. He deals with this from paragraph 19 of his affidavit of 30 November 2016. He deposes to his longstanding concern about the Mother’s behaviour towards him and the children, her controlling behaviour, and her disposition.
He refers back to his very first affidavit, filed in these proceedings on 23 October 2015. His evidence in that affidavit is equally bizarre. At paragraph 33, for example, he refers to his observation of her interactions with her family and the manner in which she quickly switches her behaviour from being calm to quite irrational and abusive. He concludes that she suffers from some form of mental illness that has been diagnosed and treated in the past. At paragraph 35 he deposes that he now realises that the Mother’s behaviour over the years has been a result of her mental illness.
He refers to the Mother’s admission to him, in an argument, that she had been hospitalised from mental illness. He concludes that the Mother suffers from schizophrenia. His concern about her current mental state is that it is driving her irrational behaviour towards him. The records about the Mother’s mental health admission clearly did not become available until July or August this year. With the benefit of access to those notes, the Father was able to confidently assert in his affidavit of 30 November 2016 that the hospital notes confirm the concerns that he always had about the Mother’s mental health. On any objective view of the evidence, the notes do nothing of the kind.
Any link that the Father draws between his perception and experience of the Mother’s behaviour and her previous psychotic episode well before their relationship existed is tenuous at best and most likely illusory. The allegations of the Mother’s mental health concerns are built on foundations of sand. Again, there is an element of opportunism here. There is absolutely no basis to draw an inference of risk of harm from a situational psychotic episode that occurred nearly two lifetimes ago from X’s perspective. In any event, given the seriousness with which the Father now views these matters, one wonders why he has made the proposal that he has and why he accepted prior arrangements.
The Father raises concerns about violence in the Mother’s household. He refers to a violent incident between the Maternal Grandfather and his son, the Mother’s brother. On any objective assessment of that evidence, there is no reasonable basis for inferring that there is a risk to the children. Again, the absence of any specific limitation or restriction in this regard in the Father’s proposal is quite notable.
The Father raises concerns about bruises that he has observed on the children’s bodies. He immediately attributes the worst possible explanation for this. According to him, it was the Mother’s doing or someone in her household, or neglect. There is no context to the evidence about the bruises. The Mother offers an alternative hypothesis that is perfectly plausible. Even if it were the case that these children are being disciplined by their grandmother, that could easily be dealt with by a Court Order. The Father obviously asks the Court to accept his evidence based on the children’s disclosures as to the cause for their bruises.
What is abundantly clear from his evidence is that these children have been exposed to the most inappropriate discussions and behaviour by their parents. One wonders what these children must have been thinking about during the conflictual exchanges between the parents when the conflict was played out before their very eyes and ears. One must wonder what these boys were thinking when each of these parents, in all likelihood, have said inappropriate things in their own homes. One must wonder what was going through the boys’ minds when the Father was photographing them naked.
What message does this send about the Father’s attitude about the Mother and the maternal household? Given these facts, is it any wonder that the children may have said something that, in all likelihood, they believe their father clearly wanted them to say. Of course, the leading nature of the questions is also noticeable.
The risk of harm allegations in this case, whilst warranting closer scrutiny by an expert, do no merit making radical changes to these children’s lives. The allegations are inconsistent with the Father’s actions. What they do is merely reflect his attitude and his wiliness to go to extreme lengths in order to win what he experiences as the battle with the Mother.
The Court is very conscious of the fact that it has undertaken the above risk assessment in a manner that is inconsistent with that undertaken by the Independent Children’s Lawyer. There are many concerns, however, about the allegations made, how and when they have been made and the inconsistencies referred to above that the Court cannot reach the same tentative view as the Independent Children’s Lawyer.
For example, most of the Department of Family and Community Services file is based on the Father’s reports or that of the doctors, but neither factor increases the strength of the allegation. Children have bruises. It is an often normal part of childhood. Children say odd things, especially when they are exposed to parental conflict like these two children are. Some of the disclosures are inherently unlikely, and it is surprising that no one has paused to think about this. For example, that his grandmother would hit Y with a knife. Has anyone really tested the plausibility of that? Some of the disclosures were clearly led by the Father. Much of the Father’s evidence about his concerns for the Mother’s mental health is so exaggerated as to be unbelievable. For example, paragraph 41 of his affidavit of 30 November 2016, is wonderful hyperbole that adds to the strong impression that most of that affidavit was drafted by the Father rather than by his solicitor. In short, the allegations made do not survive critical scrutiny at this level of the proceedings.
Nature of Relationships
The Act requires the Court to consider the nature of the relationships between the children and the parents. Both parents contended that they were the primary carer for the children. Each parent is probably unreliable in this regard. The Father further contends that the children are mainly cared for by the maternal grandparents when they are with the Mother. How he knows this is unclear.
If it is based, for example, on what the children are saying, the inherent unreliability of this in the context of this case has already been noted. It is clear that the Mother, the Father and Maternal Grandparents all play a significant role in the children’s lives. It is regrettable that arrangements must be changed in the present circumstances. It is not possible to establish who, at the present point of these proceedings, was, in fact, the primary carer if there was one.
The impression formed is that, when the hyperbole in this case is removed, these children have a good relationship with each parent and their grandparents. It seems conceded by the Father that he did work overseas at times, but not for the long periods that the Mother asserts. This does, however, cast some doubt on his assertion of being primary caregiver historically.
Facilitating Decision-Making
The Act requires me to consider opportunities for parents to participate in decision making. The problem in this case is not whether the parents have taken the opportunity to participate in decision making about the children, but, rather, the propensity for each one of them to make independent decisions, especially when they should be made jointly. Admittedly, these parents are simply not capable of joint decision making.
They have made, each one of them, decisions about enrolling children in schools or preschool independent of the other. As the Independent Children’s Lawyer has submitted, the parents must learn to communicate in regards to these issues in the future. In the December 2015 Child Dispute Conference, there was a recommendation that the parents do a parenting orders program or similar. There is no evidence before the Court to suggest that they have taken this on board. I encourage the parents to start thinking about this, especially how they will explain this in cross-examination at the final hearing.
Financial Support
The Court is required to consider issues of financial support. The Mother criticises the Father’s financial support of the children and implies that he has financial resources to him that appear quite inconsistent with his stated minimal income. This is no doubt a matter that will attract much attention at a final hearing. What information is available to the Court does tend to create at least the impression of a lifestyle that is inconsistent with the income referred to in the evidence.
Effect of Change
The Court must consider the likely effect of any changes in the children’s circumstances, including the likely effect on a child of separation from one parent or another or other significant people in their lives. For reasons previously stated, the existing shared care arrangement will come to an end unless one parent chooses to move geographically closer to the other. There is no suggestion of that happening.
The Independent Children’s Lawyer submits and the Court agrees that the children need certainty and stability. X needs to attend a school and, ideally, Y a preschool. If the Court accepts the Mother’s proposal, the children will no doubt miss their father. If the children live with their father, they will no doubt miss their mother and the maternal family. Once again, when all the hyperbole is put aside, there is every chance that these children will miss the other parent just as much as the other.
It is impossible to decide this case by reference to this consideration alone. There is merit, however, in the Independent Children’s Lawyer’s suggestion that the children spend time with the other parent two out of three weekends each month, particularly if changeover occurs at school, so that there is a point of interaction with the school.
Parental Capacity
The Court is required to consider issues of parental capacity. Both parents made quite serious allegations against the other. Viewed objectively, the Father’s concerns are more vociferous than those of the Mother. As it is, the Court is satisfied on a preliminary risk assessment basis that the capacity of each parent is adequate and enough to meet, at the very least, the children’s physical and intellectual needs. Both parents have involved these children and exposed them to parental conflict which casts a shadow of doubt over their ability to meet the children’s emotional needs.
The Independent Children's lawyer raised concerns about what seems to be the Mother’s ambivalence or indifference about Y enrolling in preschool for 2017. She points out that it was unclear why he ceased attending preschool in (omitted) in October. It is not possible, however, to extrapolate from this any suggestion that she is acting inappropriately and not in the children’s best interests. The Court simply does not know. In any event, it could be dealt with by way of order.
Cultural Factors
The Court must consider cultural factors. The parents come from different cultural backgrounds - the Father (country omitted), the Mother (country omitted). The Court agrees with the Independent Children's Lawyer’s submission that the children would benefit by having connections with both cultural backgrounds. The Father would like to travel to (country omitted), and the Court can see no problem with him doing so, particularly in circumstances where reciprocal enforcement of family law orders with (country omitted) is relatively straightforward. The Court does not believe that the Father is a flight risk in any event. The Court notes the Mother’s trenchant opposition to overseas travel for these children, but the Court believes these risks are manageable in this case.
Parental Attitudes
In a finely balanced case such as the present one it is not surprising that matters of parental attitudes can sometimes assume a disproportionate significance. Whilst both parents claim to be child focused, objectively there is every reason to doubt that assertion. Allowing the children to be exposed to entrenched conflict is hardly child focused. They make decisions independently of the other. To the Court, both parents sometimes give the impression of thriving on the conflict between them. There are aspects of the Father’s conduct, however, which cause the Court concern. The Court must be satisfied that whichever parent has primary responsibility for the care of these children must be able to support the other parent’s relationship with the children. The Court has concerns about the Father in this regards.
The fact that he obtained (country omitted) passports for the children without the Mother’s consent, quite independently of her, but knowing of her trenchant concern about this is a matter of concern to the Court. He acted in an arbitrary manner. He knew that he did not have to get the Mother’s consent for a (country omitted) passport. He knew that she opposed it and he did it anyway. The manner in which the Father has made serious concerns about the Mother’s mental health and the bruising found on the children raised concerns in the Courts mind about his willingness to make extreme allegations that have potentially profound impacts on the children in order to get his way. It makes the Court sceptical about how he would support the children’s relationship with their mother, should they be placed in his care. The Father’s attitude, evident by his actions in photographing the children in the nude with no regard to how they might experience this, and whilst having conversations with them suggests a willingness to do whatever it takes to exclude the Mother from the children’s lives.
To the extent that the Mother alleges that the Father was manipulative and controlling - some of his own evidence is consistent with this. Even if the Court has overreached in its impressions about these matters and that a more reasonable, benign conclusion is only that he lacks insight, it really does not change anything. These factors contraindicate giving to the Father primary care of these children, as the risk is that he will simply take the opportunity to seek to undermine their relationship with the Mother. The Court does not perceive from the evidence the same level of concern about the Mother.
Family Violence?
The Court is required to take into account family violence allegations. The Mother makes these allegations. It is not possible to make anything out of these at the moment. No doubt, this will be the focus of evidence at the final hearing.
Conclusion
As foreshadowed, this is finely balanced case but one which requires a decision so that some certainty can be introduced into the lives of these children. A hearing is in the not too distant future. The fact that tips the balance in favour of the Mother’s proposal is that the Court cannot be satisfied that the Father would adopt a positive attitude of encouraging the children’s relationship with their mother if they were to live with him. Whilst there are some concerns in this regard about the Mother, they are not as great, the Court believes, as for the Father.
Accordingly, the order will provide that as from the commencement of term 1 next year the children will live with their mother and attend at the school nominated by her. The order will provide that Y attend preschool. The children will spend time with their father for two out of three weekends, from after school on Friday to before school on Monday. There is no reason why the school holidays should not be shared. An appropriate order will be made for special occasions. The Father will be restrained from recording the children or photographing them in any way for a purpose related to these proceedings. The Mother will be restrained from physical chastisement of the children, or allowing anyone else to do so, as will the father. The existing orders adequately regulate the period between now and the commencement of term 1, 2017. In this regard, it is not intended by the orders that I make now to change the spends-time with and communication arrangements before that time.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 March 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Consent