Bergman and Waite
[2008] FMCAfam 1242
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERGMAN & WAITE | [2008] FMCAfam 1242 |
| FAMILY LAW – Child aged 2½ years – interim arrangements for care – parties’ relationship extremely unstable – parties resident in Darwin for three months prior to final separation – mutual allegations of family violence and poor parenting – gravity of allegations unable to be determined at interim stage – immediately following separation father relocates child to Brisbane – mother seeks immediate return of child to Darwin – father contends his circumstances more stable than mother’s – section 60CC factors – best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 92-286 U v U (2002) FLC93-112 Morgan v Miles [2007] Fam CA 1230 In the Marriage of Patsalou (1994) 18 Fam LR 426 JG & BG (1994) 18 Fam LR 255 Campbell & Spalding [1998] Fam CA 66 AMS v AIF (1999) FLC 92-852 |
| Applicant: | MS BERGMAN |
| Respondent: | MR WAITE |
| File Number: | TVC 477 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 14 November 2008 |
| Date of Last Submission: | 14 November 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 19 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Norrington |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the Respondent: | Mr Kingston |
| Solicitors for the Respondent: | Norman & Kingston |
UNTIL FURTHER OR OTHER ORDER
The child [K] born in 2006 live with the father.
The mother spend time and communicate with the child on such terms and conditions and at such places and times as the parties may mutually agree.
In the event the mother determines to live in South East Queensland she have liberty to re-list this matter at short notice.
IT IS FURTHER ORDERED
The child [K] born in 2006 be represented in these proceedings and it is requested that Legal Aid Queensland (or Legal Aid Commission NSW) arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
The proceedings be transferred to the Brisbane Registry of the Federal Magistrates Court for hearing at the Ipswich circuit of the court on 6 February 2009 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Bergman & Waite is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
TVC 477 of 2007
| MS BERGMAN |
Applicant
And
| MR WAITE |
Respondent
REASONS FOR JUDGMENT
Introduction
[K] “the mother” and Mr Waite “the father” are the parents of [K] born in 2006. These proceedings are concerned with interim arrangements for [K]’s care.
At present, [K] is in the care of her father in [F], an outer suburb of Brisbane. She has been there since late September of this year.
Ms Bergman is living in temporary emergency accommodation in Darwin. It is her position that, until recently, she has always been [K]’s main provider of care, a situation which has been unilaterally disrupted by Mr Waite’s actions in taking [K] to Brisbane without her consent.
The relationship between the parties has been a fairly brief one, which has been turbulent and marked by several separations. The most recent of which was on 22 September 2008. During their relationship, the parties lived predominantly in the Proserpine area.
At the time of their most recent separation, the parties were living in rented accommodation at [M], a suburb of Darwin. They had come to Darwin, in June of 2008, with [K], from [D], which is north of Proserpine.
The mother commenced these proceedings on 17 October 2008. It is her position that [K] should be returned to Darwin, as soon as possible, so that she can resume her relationship with her mother. If Mr Waite also returns to live in Darwin, she is open to [K] being cared for by her parents in an equal time arrangement.
The father responded to this application on 12 November 2008. It is his position that the mother has many issues arising from her parenting, both of [K] and other of her children. As such, he believes [K]’s interests will be best served if she remains living with him in Brisbane.
It is Mr Waite’s case that it is impracticable for him to return to live in Darwin, where he has no obvious source of accommodation. It is his case that he and [K] are well settled in [F], where they are living with his mother and he has a regular job.
In addition, he contends that neither he nor Ms Bergman have strong connections with the Northern Territory. As such, he contends it would be easier for [K] to have some form of relationship with her mother, if Ms Bergman relocates to the Brisbane area.
In this eventuality, he proposes [K] spends up to two days per week with her mother. Mr Waite also seeks the transfer of the proceedings to the Federal Magistrates Court in Brisbane in its Ipswich sittings and due to claims that both parties have engaged in anti-social behaviour in the past, he seeks that [K] be independently represented in the case.
At both the interim and final stage, it is the father’s position that he is the superior parent to the mother and accordingly, [K]’s best interests will be served if she continues to live with him, regardless of the fact that this may be in a different location to [K]’s mother.
The mother contends that the father is a violent and abusive person, who in the past has unilaterally removed [K] from her care. As such, it is her position that the court should not condone his poor parenting, as most obviously manifested by his decision to take [K] from Darwin to Brisbane, without prior consultation with the parent (Ms Bergman) who had previously been most intimately involved in [K]’s care.
It is the mother’s position that it is axiomatic that she is the more important parent in [K]’s life because of [K]’s tender years and that, during most of the parties’ unhappy period of cohabitation, it is agreed that Mr Waite was the family’s main breadwinner and she was engaged in home duties.
The father disputes he is a violent person. To the contrary, he contends that the mother has frequently been violent towards him in the past and has longstanding issues to do with the use of illegal drugs, which render her personality unstable and volatile. He also contends that the mother is capable of fabricating allegations of violence against him, if she believes it will advance her cause, particularly so far as arrangements for the care of [K] are concerned.
As this brief introduction shows, the positions of the parties are polarised in the extreme. There are many disputes of fact between them. The practical issues which arise, whether [K] remains in Brisbane or returns to Darwin, will be considerable. There is also a high level of urgency about the matter. Both parties need to know where [K] will be, so that stable arrangements may be made for [K]’s care until all the worrying issues, which have been raised by them, can be more thoroughly examined.
The hearing, at the interim stage, does not allow for the hearing of oral evidence from the parties concerned, nor any cross-examination. Necessarily the hearing has to be brief. As a result, I cannot make findings of fact, where there is a dispute between the parties concerned as to what previously happened between them. There are many such disputes in this particular case.
The difference between interim and final hearings is that interim hearings do not make concluded arrangements for the care of any child concerned, whereas final hearings do. In addition, very often, at the interim stage, all the evidence likely to be available at the final hearing is not yet to hand. A situation of urgency, such as a recent separation, is likely to preclude any independent expert assessment of the needs of the child concerned being available at the interim stage. So it is in this case.
Given the serious criticisms both parties have made of the other’s parenting capacity, this is the type of case where an independent family assessment, undertaken by a suitably qualified psychologist or other expert, is likely to be essential to the proper determination of what is the best outcome for [K].
At present, there is no such report available to me, yet the polarised and acrimonious circumstances of the parties demand that some interim decision be made about [K]’s care. At this stage, this is necessarily likely to be an imperfect process.
Background
The parties have previously been in dispute with one another regarding arrangements for [K]’s care. In 2007 orders were made in the Federal Magistrates Court sitting at Cairns and Mackay in respect of [K]. The current proceedings seek to revisit some of the issues raised in those earlier proceedings, which were concluded by the reconciliation of the parties rather than any final adjudication of the court.
It is not easy to derive a clear narrative of what has previously happened, between the parties from either the documents filed in the earlier proceedings or from those which the parties have more recently prepared. The following facts however appear to emerge.
The father was born in 1970. He is a [occupation omitted]. The mother was born in 1977. The parties met in Darwin in August of 2005, but moved to Far North Queensland shortly afterwards. They began to live together, in Queensland, in September of 2005.
The mother has four other children from earlier relationships. They are [W] aged 14; [X] aged 11; [Y] aged 8; and [Z] aged 5. [W] lives with his father in Bundaberg. [X] and [Y] live with their maternal grandmother in Ingham. [Z] lives with his father in Ingham.
There is considerable dispute between the parties as to whether the mother spends any time with these children and if so how frequently she does. The father’s position is that the mother does not have a strong relationship with any of these children, which is symptomatic of her impaired parenting capacity.
[K] was born in Proserpine in 2006. The parties’ relationship of about three years was a turbulent one, marked by several separations. In the main, they lived in the Proserpine area but also in Brisbane, at [F], with Mr Waite’s mother.
The mother says the parties many separations came about because of the father’s violence towards her. In December 2006 there was an altercation between the parties at [D]. The mother says she was punched. The father says the mother threw a full can at his head, causing a wound which required stitching.
On 16 January 2007, an ex-parte domestic violence order was made in the mother’s favour against the father in the Proserpine Magistrates Court. This order has never been formally revoked. Nonetheless, the parties apparently resumed their relationship a short time later.
The father’s position is that in the early part of 2007, the mother was using a significant amount of intravenous amphetamines and went to Townsville with [K], to obtain more drugs without consulting him. He was concerned about [K]’s safety, particularly when he was informed by police that a number of items of [K]’s clothing had been discovered, apparently having been abandoned.
The mother disputes that there was anything untoward about her visit to Townsville, with [K], as she was going to visit her brother. It is also her case that she went to Townsville to avoid the father’s poor behaviour towards her. By necessary implication, she denies that she had any issues to do with drug use at the time.
It is the father’s case that he went to Townsville to recover [K] to preserve her safety in March 2007. The mother says he abducted [K] from her by the application of excessive force and violence. She says that both she and [K] were injured by the father during the incident.
This incident, which is much disputed between the parties, led to the mother commencing urgent proceedings in the Federal Magistrates Court at Brisbane on 11 April 2007. She sought a recovery order for [K] and that [K] should live with her.
The father responded to the application on 23 April 2007. He sought orders that [K] live with him, on both an interim and final basis.
In addition, he sought that any time the mother spent with [K] should be professionally supervised, particularly so that it could be ensured that the mother was not under the influence of drugs, when she was spending time with [K].
In his affidavit in support, the father asserted that the reason none of the mother’s older children lived with her was because of her longstanding drug addiction, which she supported through working in the sex industry. It was the tenor of his case that he feared for [K]’s safety, if she returned to the mother’s care.
The mother asserted that she had always been [K]’s primary carer, apart from the period during which Mr Waite had removed [K] from her care. She said she had been breast feeding [K], when Mr Waite had taken her in Townsville.
The father conceded that he had been engaged in full-time work for most of the time of the parties’ relationship but asserted he had been an integral part of [K]’s care on a daily basis. In March of 2007, he had taken [K] to Brisbane, where he had stayed with his mother at [F].
In her affidavit material, the mother asserted that the father also had issues to do with his use of illicit drugs. The father’s position was that, up until March 2007, he had been increasingly concerned about the mother’s behaviour, which he observed to have been adversely affected by the mother’s use of drugs and alcohol.
It was also his assertion that the mother had exhibited a considerable degree of psychiatric instability, during the parties’ relationship together. As a result he asserted that the mother had not been able to adequately parent [K], who had been left unfed and uncared for by her mother, from time to time.
The father portrayed the mother as a poor and neglectful parent, as a result of significant drug, alcohol and psychiatric problems. For her part, the mother portrayed the father as violent, impulsive and prone to take things into his own hands, so far as [K] was concerned.
On 24 April 2007, whilst sitting in Cairns, Coates FM made orders in respect of the parties’ competing applications. He ordered that [K] be independently represented in the proceedings and an urgent family report be prepared.
In addition, upon Mr Waite’s return to [D], he ordered that
Ms Bergman spend time with [K] on each Saturday and Sunday from 2:00pm until 3:30pm. The proceedings were adjourned until 31 May 2007, to the court’s sittings at Mackay.
On 31 May 2007, Coates FM made further orders at Mackay, with the parties’ consent. Until further or other order, it was ordered that [K] be cared for in a week about arrangement, moving between her parents on each Friday. Neither was to remove [K] away from the Whitsunday area nor to consume alcohol to excess or be under the influence of illegal drugs, whilst [K] was in their respective care.
Further orders were made, no doubt at the behest of the independent children’s lawyer, that each party should be subjected to random supervised urine tests to determine whether either had taken illegal drugs. The parties agreed that they should have equal shared parental responsibility for [K].
Importantly, from the father’s perspective, the orders bore a notation that the mother had a protection order against him. In the notation, the father asserted that there was no basis for the order but he was unable to afford to take proceedings to have the order discharged. For her part, the mother asserted that the making of the order was justified.
On 5 July 2007 and 13 July 2007 respectively, each party discontinued his or her respective application. The orders of 31 May 2007 were not formally discharged. The proceedings were dismissed on 17 July 2007.
It seems clear that the motivation for the filing of the notices of discontinuance was that the parties had reconciled and resumed living together at [D]. When precisely this occurred is unclear to me nor is it clear for how long the shared care arrangement was in place.
The father’s solicitor filed an affidavit to which is attached a toxicology urinalysis for drugs and alcohol. This indicated that, in mid-April of 2007, Mr Waite did not have any illicit substances in his urine. To the best of my knowledge, the mother has not filed a similar report.
The mother says the parties moved to Darwin, in June 2008, for financial reasons and to make a fresh start. The mother asserts that, once in Darwin, the father became involved in the illicit drug industry in the town and began to smoke the drug “Ice”.
The father denies that he used this drug or was involved in illegal activity. It is his case that the mother was frequently absent from the parties’ home, in Darwin, particularly when she had received her social security entitlements.
The father does not dispute that the parties’ relationship was a volatile one. He asserts the parties frequently argue over money, particularly that the mother continued to claim a sole parent pension, whilst she was in fact living with him. The import of his allegations is that the mother needed significant sums of money to support a drug addiction.
Once again, the mother has a different view of what has occurred between the parties since June of 2008. It is her case that she has been “in and out of woman’s shelters in Darwin” because of the father’s violent behaviour. Mr Waite concedes that he has no direct personal knowledge of the mother using drugs, whilst in Darwin, but the tenor of his case is that he believes that she has been.
It is also the father’s position that he has been the victim of the mother’s “violent outbursts”, during the period the parties lived in Darwin. As a result, he asserts that he contemplated obtaining a domestic violence order against the mother.
It is his case that, when the mother was absent from the parties’ home at [M], he was wholly responsible for [K]’s care. As such, in recent times, he says that he has been the parent who has provided the bulk of [K]’s care.
There was a final altercation, between the parties, at [M], on
22 September 2008. Again, the parties have different views as to what occurred. At any event, as a result of the parties’ behaviour at this property and other properties in Darwin, it is Mr Waite’s position that both he and Ms Bergman have been “black listed” by real estate agents in Darwin and, as a result, it is unlikely that he will be able to obtain rental accommodation for himself in Darwin.
It is Mr Waite’s position that currently he and [K] are well settled, in his mother’s house, at [F]. He is employed as a [occupation omitted], in Brisbane, earning $750.00 net per week.
Mr Waite deposes that his mother’s home is comfortable and well resourced. He says that his mother cares for [K], whilst he is at work. [K] also attends child care regularly.
In all the circumstances of this case, Mr Waite’s case can be summarised as follows:
·He is not an illicit drug user. The mother is.
·Given the mother’s emotional instability and likely illicit drug use, he is better placed to parent [K].
·He denies he is a violent person. Rather he asserts the mother has fabricated claims of violence against him for her own ends.
·[K] is secure and safe in Brisbane. He is able to provide for her needs, both emotional and financial, whilst he lives and works in Brisbane.
·There is nowhere for him to live in Darwin.
·In all the circumstances, it is likely to be easier for the mother to come to Brisbane to spend time with [K] than vice versa, particularly as Ms Bergman cannot be said to be well settled in Darwin.
The mother’s case can be summarised as follows:
·She denies being an illicit drug user.
·It is her case that she is and always has been [K]’s primary carer.
·It is her case that she has been the victim of constant family violence at the father’s hands.
·He is a poor parent whose actions have prevented [K] having a meaningful relationship with her.
·The most obvious example of the father’s contempt for her and his lack of insight into the responsibilities of being a parent is the fact that he has taken [K] so far away from her mother.
The mother states that it is financially impossible for her to relocate to Brisbane. In any event, she has no desire to go to Brisbane, where she has never lived for any extended period and where she has no close connections. Her family mostly live in Far North Queensland.
For his part, the father disputes that the mother is currently without financial resources. He believes that she has returned to work, as an escort, in Darwin. It is also his case that the mother knew of his plans to leave Darwin, with [K] and raised no objection to them. In fact, he believes that she also planned to leave Darwin.
The evidentiary difficulties
The proceedings first came before me, in Darwin, on 23 October 2008. At that stage, the father was only recently served and had not had an opportunity to formally respond. As a result, the proceedings were adjourned until 14 November 2008.
I was only temporarily in Darwin in October. There was no Federal Magistrate available to hear the matter in Darwin on the adjourned date. Accordingly, I elected to hear the matter by means of a three-way telephone link between myself in the court at Adelaide, Mr Norrington, the mother’s counsel in his office in Darwin, and the father’s counsel, Mr Kingston in his office in Brisbane.
The only affidavit material before me is that which the parties themselves have filed. Accordingly, there is no evidence from any independent third source, which is likely to be more objective and so more reliable than the evidence of the parties themselves.
For obvious reasons, given the intensity of the dispute between the parties and the trenchant criticism each has made of the other’s conduct, I am concerned that either one or both of them has either exaggerated claims of previous misconduct or indeed has fabricated them.
To be frank I am gravely concerned at the behaviour of both parties in the past and its potential to be detrimental for [K]. However, at this stage, I cannot determine the specifics of who did what to whom and when. This troubles me.
At this point, given the nature of the proceedings before me, particularly the limited evidence available, I am not in a position to resolve definitively the serious disputes which arise between the parties. The fact remains however that each has, in the past, been content to entrust [K] to the other’s care. The parties have also been willing to reconcile their differences in the past.
I appreciate that it is sometimes a phenomenon displayed by the victims of family violence that they are unable to escape from the thrall of their abusers and reconcile with them, for no apparent rational reason. Whether this is the case with the mother I am unsure at the present time. I am also unable to ascertain definitively whether she has a propensity to “cry wolf”, for no proper reason, when she feels aggrieved by the father’s behaviour.
However, regardless of these evidentiary difficulties, I must make some assessment of the situation which confronts [K]. At worst, if she remains in Brisbane, she will possibly be deprived of the succour of her main source of emotional support and will possibly be left in the care of a violent and abusive parent.
On the other hand, if she is returned to Darwin, at worst, she will possibly be entrusted to the care of a person who is unstable and liable to be detrimentally affected by drugs. Obviously, neither option is likely to serve the best interest of the child concerned. Regrettably, at this stage, it is impossible to determine which is the more likely scenario and determine, to any satisfactory degree, what is best for [K].
In addition, at this stage, I am unable to assess the validity of the various practical difficulties, which each of the parties raise. I do not know if the father is likely to be precluded from obtaining accommodation in Darwin. I do not know if the mother’s financial circumstances are so dire that she cannot come to Queensland, at least temporarily.
As is commonly the case in interim proceedings such as these, the parties, particularly the mother, have attempted to buttress their respective positions by recourse to other extraneous sources of evidence, particularly in the form of subpoenaed documents.
None of these documents were prepared in conjunction with these proceedings. None of the documents concerned are on oath. Obviously, they cannot be subject to any close scrutiny. For those reasons, in my view, some care must be taken with these sources of parol evidence.
The mother relies on five Northern Territory Police “PROMIS” records, which relate, in part at least, to Mr Waite. The PROMIS system is the computerised record keeping system of the Northern Territory Police, which records the various day to day business activities of the Northern Territory Police, particularly if they are called to scenes of public disorder or suspected criminal behaviour.
In addition, the mother has subpoenaed other family violence restraining orders, which relate to Mr Waite. It is her position that these various records establish that Mr Waite is indeed the violent, abusive and anti-social person, whom she portrays. It would appear to be the subtext of her case that, if the court accepts that this is true, it is therefore more likely than not that her account of past events is true. I have some difficulty with this submission.
On 13 September 2008, Northern Territory Police were called to the parties’ former home at [M]. The person who summoned the police was Ms Bergman. She complained that Mr Waite had attempted to run her over following an argument about who should care for [K]. The mother told police she had to go to work, whilst the father preferred to go pig hunting.
Mr Waite denied any improper conduct towards the police and said that Ms Bergman’s complaints against him were false and vexatious. He apparently told police “each partner uses the child against each other”. The police took no action.
Mr Waite has previously been involved with a person known as Ms F. The two lived together. Ms F was the parent of a child [name omitted], born in 1988. The child took his life on 30 October 2003.
Mr Waite provided a statement to the coroner’s constable regarding the circumstances of the child’s suicide. He told police that the child had revealed to him some aberrant sexual behaviour, which had caused
Mr Waite to lose his composure and strike the child. After this incident, he committed suicide.
I am not in a position to put this tragic incident into any context, so far as the father’s propensity to be violent. The disclosures made by the child were extreme indeed and would have likely shaken any ordinary person’s mental equilibrium. The mother can have no personal knowledge of the incident and I am concerned that, upon discovering it in the police records, she is attempting to use it for her own advantage.
The next Northern Territory Police record, upon which the mother relies, relates to an incident which necessitated the attendance of the police, at an address in Humpty Doo, on 26 January 2005. The complainant was Ms F and involved allegations concerning Mr Waite.
Mr Waite apparently complained that Ms F had been behaving erratically. Ms F was later conveyed to the Royal Darwin Hospital for some form of assessment. Ms F claims that Mr Waite had assaulted her. No visible injuries were found.
Mr Waite was reported as being calm and cooperative with the police. He indicated that he had concerns about the psychological health of
Ms F. Later he complained that Ms F had absconded with a child and trashed his home. The police took no action.
The records in respect of this incident are convoluted. As a result, it is difficult to determine precisely what happened between Mr Waite and Ms F. Again, I do not believe it is possible to conclude that the father is an inherently violent and unstable person.
On 5 August 2008, Ms Bergman apparently attended at the front counter of the Humpty Doo Police station to complain that she had been evicted from the [M] property by Mr Waite. She reported to police that she and Mr Waite had been arguing all day but no violence had occurred. It appears that no further action was taken by police in respect of this incident.
The final Northern Territory Police record relates to the circumstances surrounding the parties’ separation on 22 September 2008. Mr Waite is described as the complainant in the record. He reported to police that he had ongoing problems with Ms Bergman, whom he described as being “in and out of his life”.
He reported that Ms Bergman had recently returned to his home at [M] and had not stopped verbally arguing with him. Mr Waite reported that he thought that Ms Bergman was trying to provoke him so that he would assault her “so she can get a DVO against him and take his daughter off him”.
When police attended at the [M] property, Ms Bergman apparently confirmed that she had recently returned there and had been arguing with Mr Waite. She apparently stated that she had plans to go to Queensland, in the near future, but did not want to leave without [K]. The police found no signs of any violence or injury. [K] was in childcare at the time.
This most recent record confirms the impression I have that the parties’ relationship with one another has been an unstable and volatile one. In my view, it does not indicate one party as being undoubtedly the protagonist in the parties’ violent relationship and irrefutably prove that the other is the victim of unacceptable anti-social behaviour.
In my view, the various Northern Territory Police records leave the skein of evidence as tangled as it was on the basis of any consideration of the parties’ affidavit evidence alone. There does appear to be some indication that both parties wanted to leave Darwin with [K]. Certainly, their relationship in Darwin appears to be unsatisfactory and when together, I have grave reservations about their capacity to parent the child together appropriately.
The mother has also relied on two other domestic violence orders, which involve Mr Waite. The first was issued by the Murray Bridge (South Australia) Magistrates Court on 7 July 2008. An ex-parte order was made in favour of Ms F on this occasion. I do not know the circumstances of this order. However, it seems to be the case that
Mr Waite cannot have been in South Australia at the time it was made.
The other relates to a Ms T, who was granted a domestic violence order, again on an ex-parte basis, in the Darwin Magistrates Court on 5th September 2008. Ms T is apparently a relative of Ms F.
I do not know the circumstances surrounding the making of this order. However, I have been advised that Ms F and Mr Waite are involved in some form of litigation regarding care arrangements for their child [name omitted]. Accordingly there may be some tension between them.
Again, I am not in a position to make any concluded findings of fact, which incontrovertibly establishes that Mr Waite is a violent and anti-social person merely because he has been the subject of these two orders, particularly as he has not sought to defend either of them or give evidence in the proceedings concerned.
The legal principles to be applied
The service of [K]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
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 [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, 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:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·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 result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or 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;
·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;
·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.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
This case throws up complex issues to do with relocation. It is the father’s wish to live, with [K], in Brisbane. It is his case that, as the preferable residence providing parent, he should be entitled to live how and where he choses, with [K].
On the other hand, ostensibly at least, the mother says that she wishes to remain living in Darwin for the indefinite future. She has no wish to move to Brisbane. Accordingly, she asserts that the father’s actions have deprived [K] of the opportunity to have a meaningful relationship with her.
Australia is a free and democratic country. It is the right of any parent to live how and where he or she choses, separate from the other parent concerned, at the end of the relationship between them. There is no principle of law, which requires parents to live close to one another on an indefinite basis.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents regardless of the fact that the parents concerned choose not to live together. As a result of these matters, the High Court has determined that relocation cases require a particularly close and delicate analysis of the various issues involved [see AMS v AIF (1999) FLC 92‑852].
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, particularly young children, in terms of their parental relationships. In addition, the determination of a relocation issue at the interim stage may make the need for a final hearing redundant.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone. [see Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998].
At both the interim and final stage, of any relocation case, the best interests of the child concerned remain the paramount consideration. Depending upon the circumstances of the case concerned, it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to the child concerned, rather than necessarily directing that a child be moved closer to that parent or be restrained from being moved in the first place.[2]
[2] See U v U (2002) FLC93-112
Campbell & Spaulding was decided prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending Act there was a focus on maintaining stability in arrangements for a child pending a final hearing. Accordingly, at the interim stage, the court was directed to exercise considerable caution, in respect of relocation issues, particular unilateral relocations, which occurred independently of the other parent concerned.
In Morgan v Miles[3] Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…it [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spalding remain apt and relevant to determination of these cases.”
[3] Morgan v Miles [2007] FamCA 1230 at p.25
Conclusions
It is now the stage where I attempt to marry up the legal principles to the factual situation in this case. Firstly, I must consider the relevant section 60CC factors, particularly the primary considerations.
It is difficult to see how [K] can have a meaningful relationship with her mother, if Ms Bergman remains in Darwin and [K] remains in Brisbane. [K] is just over two and a half years of age. She is at a vulnerable age, when necessarily her parental relationships are not fully formed.
Both Mr Waite and Ms Bergman assert that there is a need to protect [K] from suffering both psychological or physical harm as a result of being exposed to either neglect, abuse or family violence. This is the most troubling aspect of this case.
At this juncture, I am unable to definitively determine which of the parties’ households is likely to be safer for [K]. To be frank, I think it likely that there are significant risks in both households. It is impossible to decide the truth of each of the parties’ allegations of poor, violent and neglectful parenting on the part of the other.
I have not been provided with any affidavit evidence from Mr Waite’s mother. At present, she appears to be central in providing care for [K]. However, in the past, both parties have been prepared to entrust [K] to the care of the paternal grandmother. In addition, in her affidavit material, the mother has made no specific criticism of the person concerned.
At this juncture, I think I can conclude that [K] has a significant relationship with both her parents [section 60CC(3)(b)]. It seems to me that she has been cared for by both her parents, whilst they have been a couple and has then been individually cared for, by both of her parents, during the lengthy periods of their various separations. In addition, the parties agreed on a shared care arrangement in May of 2007.
For the reasons already provided, [K]’s age at present is a
significant consideration. Her relationship with her mother is fragile and may be damaged by any protracted period of separation between the two [section 60CC(3)(g)]. At this point, I am unable to
conclude definitively that Ms Bergman should be regarded as having a
pre-eminent role over Mr Waite, because she has been [K]’s primary carer.
There is significant evidence to indicate that Mr Waite may have a serious level of deficit in his ability to facilitate and encourage a close and continuing relationship between [K] and her mother [section 60CC(3)(c)].
This most obviously flows from the father’s actions in removing [K] from Darwin in late September of 2008. There is some evidence to indicate that he told Ms Bergman about his proposal but clearly the issue was not well handled.
For obvious reasons, given the circumstances of the case as I have outlined them up to this point, I have significant concerns about the ability of each of the parents concerned to provide for [K]’s emotional needs and the attitude each has shown to the responsibilities of being a parent. It seems clear that much of [K]’s life, up until this stage, has been subjected to dislocation and a gross level of upheaval [section 60CC(3)(f) and (i)].
In her case, the mother has placed significant reliance on a number of family violence orders which concern Mr Waite. However, I note that none of these orders was either a final order or occurred after a contested hearing [section 60CC(3)(k)]. Accordingly, I do not think that the mere existence of these orders can be a determinative factor in this case.
As is clearly the case, both parties have raised significant issues to do with the alleged family violence of the other. The police records concerned do not allow me to make any concluded findings about who was the major protagonist of this violence or whether both parties have been locked in a mutually abusive and violent relationship.
In my view, at this stage, given the provisional nature of the evidence available, I must be careful not to fall into any stereotypical error regarding who is more likely than not of the parties to be the violent spouse.
As I indicated at the outset, this case raises many practical considerations. It is a long way from Darwin to Brisbane. Air flights between the two locations are expensive. If the parties remain geographically separated, it will be difficult, if not impossible, for [K] to pursue any form of relationship with one of her parents [section 60CC(3)(e)].
In addition, I do not dismiss as outlandish the father’s claim that he will not be easily able to obtain rental accommodation for himself in Darwin because of the parties’ prior conduct there. In this regard, I note the mother is currently in emergency accommodation and is likely to remain in such accommodation for the indefinite future. Similarly, it seems likely that it will be difficult, but perhaps not impossible, for the mother to move to Brisbane.
What I think the case really revolves around is the likely consequences for [K], in the short to medium term, if there is any immediate change in her circumstances [section 60CC(3)(d)]. If [K] returns to live in Darwin it is uncertain how she will be cared for, particularly if either Mr Waite elects not to return to live in Darwin or is unable to obtain appropriate accommodation for himself.
Certainly it is difficult to ascertain whether it will be practically possible for [K] to be parented in either an equal time arrangement or a substantial and significant time arrangement, involving both her parents, in Darwin.
In my view, the overall circumstances of this case are somewhat analogous to the emergency situation alluded to by Boland J in Morgan v Miles, which can justify an interim relocation of a child. The parties’ period of joint residence in Darwin has been extremely brief. The period has been marked by several separations and vitriolic exchanges between the parties. As such, it is not the case where the return of [K] to Darwin is a situation which necessarily sees her returning to a well established status quo or routine.
To the contrary, [K]’s return to Darwin may presage a new round of instability for her. Her father may not be able to return to live in Darwin. The mother does not appear to be well settled in Darwin. She has no family in the town. It is her case that she is struggling financially there. [K] has lived in Darwin for only around three or four months.
At this stage, I think it is incumbent upon the court to embark as soon as possible on a more thorough examination of [K]’s circumstances, which is likely to follow from the appointment of an independent children’s lawyer and possibly the commissioning of a family assessment report. Such a process may lead to a greater degree of clarity about the serious and contradictory criticisms each party has made of the other.
It seems to me that [K] is comparatively well settled in Brisbane, in her paternal grandmother’s home, with her father. I am thus not persuaded that a return from Darwin would automatically provide her with the same level of stability. Obviously, the greatest deficit arising from the perpetuation of this arrangement is that [K]’s level of relationship with her mother will be disrupted, unless Ms Bergman moves.
However, in my view, it is open to the mother to move to Brisbane, if she so wishes. In my view, this would be a better option for [K] than directing that [K] be returned to Darwin, where neither party is particularly well established, certainly not the mother. At this stage, [K] remaining in Brisbane seems to me to be the most stable option for her care, certainly in the short term.
This is an unusual and disturbing case. I acknowledge that courts such as this one, should not be seen to condone a parent’s unilateral action, particularly an action which results in the movement of a child many thousands of kilometres away from one of his or her parents.
However, for the reasons provided above, I believe that this case is an exceptional one, marked as it is by very serious allegations of misconduct by both parties concerned, which cannot be resolved at this interim stage.
These circumstances dictate that [K] should be cared for in as stable a situation as possible. I think this situation is likely to be more available in the environment currently offered by her father than that offered by her mother. Albeit I accept that how this situation came about was not as a result of any consensual decision or even of any discussion on the part of the parents concerned. Obviously it was a major long term decision about [K] [section 4].
Given the mutual allegations of family violence made by both parties in this case, which are incapable of any proper level of verification, it is in my view not appropriate that the presumption of equal shared parental responsibility be applied in respect of [K].
Obviously, at this stage, it is also impracticable to consider [K] spending substantial and significant periods of time with her mother, whilst [K] remains in Brisbane, until Ms Bergman determines what options she proposes to pursue in future in regards to coming to Brisbane.
I appreciate that Ms Bergman has no family or support in the Brisbane area. However, that seems to be the situation so far as her living in Darwin is concerned. It does not seem to me to be beyond the bounds of possibility that she will be able to obtain some form of emergency accommodation in Brisbane or that it is likely that she will be totally without support in that city.
As I say, it seems to me to be imperative that some deeper inquiry be made into what outcome is likely to best serve [K]’s interests. This inquiry will be assisted by the appointment of an independent children’s lawyer and almost certainly the provision of a family assessment report at an early stage. For the reasons already provided, it does not seem to me to be beyond the bounds of possibility that
Ms Bergman will be able to take an active part in the preparation of this report.
Given the decision, which I have reached, it seems that the balance of convenience falls in favour of these proceedings being transferred to the Brisbane Registry of the Federal Magistrates Court for attention at its Ipswich circuit.
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 one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 19 November 2008