BOSLEY & KEEBLE
[2010] FMCAfam 886
•15 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOSLEY & KEEBLE | [2010] FMCAfam 886 |
| FAMILY LAW – Parenting – children aged 7 and 2 – where one child has Down Syndrome – best interests of the children – mother unilaterally moved from Darwin to Melbourne – where mother refused to be part of Court proceedings – change of residence. |
| Family Law Act 1975 (Cth), ss.60CC, 60B, 61DA(1) |
| Johnson & Johnson (2000) 201 CLR 488 |
| Applicant: | MS BOSLEY |
| Respondent: | MR KEEBLE |
| File Number: | DNC 190 of 2009 |
| Judgment of: | Turner FM |
| Hearing dates: | 14 & 15 July 2010 |
| Date of Last Submission: | 15 July 2010 |
| Delivered at: | Darwin |
| Delivered on: | 15 July 2010 |
REPRESENTATION
| The Applicant: | Self represented |
| Counsel for the Respondent: | Ms Holtham |
| Solicitors for the Respondent: | Holtham & Associates |
ORDERS
That all previous parenting orders are discharged.
That the mother deliver the children of the marriage, [Y] born [in] 2002 and [X] (aka [X]) born [in] 2008 to the [omitted] Police Station for collection by the father by 5.00pm on Thursday 15 July 2010 failing which a recovery order will issue
That the father have sole parental responsibility for the children [Y] born [in] 2002 and [X] (aka [X]) born [in] 2008.
That the children live with the father.
That the mother spend time with the children as can be agreed between the parties but failing agreement as follows:-
(a)For the first half of the September/October school holidays in 2010, such time spent to take place in the Darwin area;
(b)For the first half of the mid year and Christmas school holidays in odd numbered years and the second half of the mid year and Christmas school holidays in even numbered years; and
(c)For the whole of the first term school holidays in odd numbered years and the whole of the third term school holidays in even numbered years.
In the event that the mother wishes to exercise the time with the children in Darwin, the mother must provide the father at least 21 days prior to the time taking place with written details as to an address where the children can be contacted and details of a landline or mobile number where the children can be contacted.
In the event that the mother wishes to exercise time with the children in any place other than Darwin, the mother must provide the father at least 21 days prior to the time taking place with:-
(a)Written details as to the dates of travel, where the children are travelling to, an address where the children can be contacted and details of a landline or mobile number where the children can be contacted; and
(b)Written evidence as to the return airfares, and evidence as to payment of the airfares.
Upon receipt of the information referred to in Order (7) the father shall reimburse the mother within 7 days of one half of the costs of the airfares.
That the mother is at liberty to communicate with the children by telephone and other electronic means such as Skype and MSN at all reasonable times and that the father will encourage the children and facilitate such communication.
That the parties keep each other informed as to their postal address and contact numbers and advise of any change of details within 48 hours.
That the parties notify each other promptly in the event that the children suffer a serious injury or illness and advise of the name of the treating doctor or professional.
That the father keep the mother informed by email or letter as to the children’s progress in an educational facility including providing copies of all reports and copies of any yearly photographs.
That the parties be restrained and an injunction issue restraining the parties from removing the children [Y] born [in] 2002 and [X] (aka [X]) born [in] 2008 from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration, Multicultural and Indigenous Affairs take all necessary steps to immediately place the said children’s names on the P.A.C.E. system.
That the Australian Federal Police maintain an airport watch of the said children on all flights leaving any International Airport in all States and Territories of the Commonwealth of Australia.
That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to make all necessary steps to restrain MS BOSLEY born [in] 1971 from removing the said children from the Commonwealth of Australia.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Bosley & Keeble is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Darwin |
DNC 190 OF 2009
| MS BOSLEY |
Applicant
And
| MR KEEBLE |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore — Revised from Transcript)
This is a matter in which there are competing applications for parenting orders in relation to the children [Y], born [in] 2002 and [X], (also known as [X]), born on [in] 2008.
The applicant mother is seeking an order that the children live with her in Melbourne and that the father have time with the children for two weeks in the mid-year holiday and four weeks at Christmas.
The respondent father is seeking an order in the alternative. If the mother was to return to Darwin then the children live with her and the father have extensive weekend, holiday and special events time with the children, or if the mother returns to Melbourne then the children live with him and have extensive holiday time with the mother.
The mother indicated very early in the proceedings it was not her intention to return to the Darwin area.
Background
By way of background, the mother is age 39 and is living in Melbourne. The mother is not legally represented in these proceedings.
The father is age 49 and is living in Darwin. The father is represented by Ms Holtham in these proceedings.
The parties commenced cohabitation in 1999 in New Zealand, moving to South Australia in 2000 and married [in] 2000.
The child [Y] was born in 2002.
The parties separated in 2003.
In 2004, the father moved to Darwin and the parties divorced.
The mother moved to Darwin in 2005.
Whether the parties reconciled is a matter of contention, but nonetheless the child [X] was born in 2008.
In 2009, the relationship, in whatever nature it was, came to an end, and as a result of a domestic violence incident, the father was charged and convicted with assaulting the mother. A Domestic Violence Order was taken out by the mother against the father.
In 2009 the mother filed in the Federal Magistrates Court in Darwin her Court proceedings which are before us today.
In June 2009, the father commenced weekly supervised time with the children at C Care and this continued, albeit irregularly, until October 2009.
In June 2009, the father was charged and convicted with several breaches of the domestic violence order, none of which were violent-related, but in respect to the communication condition. The father received a suspended sentence in respect to that conviction.
In October 2009, the mother unilaterally moved to Melbourne from Darwin.
In July 2010, the father had time with the children in Darwin as per Court orders and just prior to these Court proceedings.
Evidence
By way of evidence, the mother relies on her initiating application filed on 27 April 2009 and her affidavit filed on 29 October 2009.
The mother chose not to file an updating affidavit, nor did she comply with the direction for the filing of an Outline of Case document.
The father relies on his response filed 19 June 2009, his affidavit dated 1 April 2010, the affidavit of Ms T filed 8 April 2010, the affidavit of Dr R and the Outline of Case document.
The Independent Children’s Lawyer, Ms Bowen, referred to the family reports of the family consultant, Mr V, released on 26 October 2009 and 14 July 2010.
In considering the matter, I have regard to each and every one of the above documents.
The only oral evidence received with that was that of the applicant mother, that being her own admission as to the contents of her affidavit that was filed in October and the cross-examination in part by
Ms Holtham.
It is important that it is noted at this point the extent of the involvement of the mother in these proceedings.
At the commencement of the proceedings, the mother was informed by the Court as to her rights as a self-represented litigant in accordance with the decision of Johnson & Johnson (2000) 201 CLR 488.
It was further explained how the proceedings would be conducted, what witnesses would be called and the order of the evidence. The mother was accompanied in Court by two support persons.
During cross-examination on the first day of the hearing, the mother became visibly upset and abusive and stormed out of the witness box, swearing profusely and refusing to participate any further.
The mother then left the Court precinct.
Court was adjourned and during that time the mother returned.
The mother explained that she felt intimidated by the father who was sitting behind Ms Holtham, and also was upset at the nature of the questioning.
It was observed during cross-examination that the father was making faces and at one point made a verbal comment to the mother, and
Ms Holtham was asked to inform and remind her client of the inappropriateness of such behaviour, and she did so.
At no time, however, was Ms Holtham inappropriate in her cross-examination and this point was made known to the mother.
As a result of the concerns however raised by the mother, the Court was adjourned until the next day to enable the mother to speak to the duty lawyer and for arrangements to be put into place whereby the father would attend Court the next day by telephone during her cross-examination.
The mother was also informed that if she failed to attend Court, an application would be considered for a recovery order as the address of the mother in Darwin and the whereabouts of the mother and the children are unknown.
On day two of the trial, the father was placed in another room and linked by telephone which was muted to ensure that any noise made by the father could not be heard in the courtroom. Cross-examination resumed of the mother by Ms Holtham and again it was noted that
Ms Holtham was respectful and professional in her approach in her cross-examination of the mother.
Further, the mother confirmed to the Court that she had spoken to the duty lawyer about her rights and obligations.
However, within half an hour of cross-examination, the mother advised the Court that she was getting angry and needed an adjournment.
A five minute adjournment was granted and the mother was told by the Court to control her anger, and that cross-examination would resume after the adjournment.
The mother then left the Court precinct and chose not to return. As a consequence, the matter must now proceed by way of an undefended hearing.
I did not find the mother to be a credible witness. Her answers were often evasive, her memory selective, and the mother did not respond in what I consider to be a child-focused manner.
The law
As to the law, the principles governing the determination of the competing parenting applications are set out in the Family Law Act 1975 (Cth) (“the Act”).
In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration.
In determining what is in the children’s best interests I must consider the primary considerations and the additional considerations as set out in s.60CC. The primary considerations are consistent with the first two objects of Part VII of the Act as contained in s.60B.
There are two primary considerations. The first is the benefit of the children having a meaningful relationship with both of the children’s parents. The second is the need to protect the children from physical or psychological abuse or being subjected to or exposed to abuse, neglect or family violence. The Act indicates that these considerations have particular importance, and accordingly in this judgment I will give them very careful consideration.
I must also take into account the thirteen additional considerations as set out in s.60CC(3). The additional considerations that are relevant in this matter will be addressed shortly.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities.
I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s interest being treated as paramount.
Under s.61DA(1) when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility.
However, this sub-section does not apply in certain circumstances namely, if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence.
Application of the Law
I now am going to apply the law to the circumstances of this case.
I must firstly turn to the primary considerations.
The first consideration is the benefit of the child to have a meaningful relationship with both of the child’s parents. It cannot be denied that these two children would benefit greatly from having a meaningful relationship with both parents.
The older child, aged seven, has Down Syndrome and already has a close relationship with both parents.
The younger child [X] is only two and unfortunately has had very little to do with his father in his short life.
I must therefore treat this primary consideration as having principle importance in my deciding what is going to be in the best interests of these children.
The second primary consideration is the need to protect the child from physical or psychological harm, or being subjected to or exposed to abuse, neglect or family violence.
There is no denying that, in this case, there has been family violence. It is not, however, a history of family violence, but episodes occurring and resulting from the parties and the ultimate deterioration of their relationship in March 2009.
What I must consider, though, is whether there is a need to protect the children, and if so, the extent of this need is to be reflected in the final orders, and this will be dealt with later in my judgment.
Additional considerations
In this section, I consider the additional considerations insofar as they relate to this case.
Firstly, children’s views. The children, due to their age and ability were not part of the interview process with the report writer and, therefore, this consideration cannot be taken into account.
The second is the nature of the children’s relationship with the parents and other persons.
There is nothing in this evidence that leads me to find that the relationship of the children with the parents is anything other than a good one, although the mother is concerned that the father is primarily only interested in [X], and not in [Y] and further that he is seeking orders for the children to live with him only to punish her.
It is observed, however, by Mr V at page 6 of the report which was released on 14 July 2010 where, under the heading, The Children, he states:
[X] and [Y] appeared in the limited confines of the observation periods to relate well and eagerly to each parent. Both the father and the mother appeared to demonstrate appropriate parenting directives for the children. Ms Bosley was very confident that the children would rush up to her in greeting, which turned out to be the case. They were clearly affectionate towards her, and she reciprocated their affection abundantly.
Mr Keeble was very confident in his management of the children, telling me that they (all three of them) had spent many hours in the park over the weekend playing together and getting used to each other. While the children did not display the same intensity of affection towards him as they did towards their mother, they were clearly at ease with him and interacted positively with him.
I therefore find that the children have a good relationship with both parents.
The next factor I must consider is the willingness and the ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
It was evident throughout the whole of the mother’s cross-examination that she wants nothing further to do with the father, and with such comments as,
“I don’t want anything to do with him, and I don’t want the father to have anything to do with the children.”
This is of grave concern to me, as the children are so young and the parties do reside in different states.
Further, I have observed firsthand the demeanour of the mother and her loss of control through anger.
I therefore find that the mother does not have the willingness and the ability to facilitate and encourage a close and continuing relationship between the children and the father.
I don’t think the same can be said of the father.
Whilst the father’s evidence was untested, there was nothing in his affidavit material or in the reports prepared by Mr V that leads me to make this finding.
This is also supported by the generosity of the orders being sought by the father, in the time to be spent by the mother even though there are concerns that the children may be withheld by the mother and that has been proven by her unilateral moving from Darwin to Melbourne and the difficulties that the father has experienced since March 2009 in trying to secure time with the children.
The next factor is the likely effect of any change in the children’s circumstances, including the effect on the child if separated from either of their parents, or another child, or another person.
I have considered this factor very closely. Unfortunately, the family report does not provide me with much assistance in this regard, suffice to say that Mr V does point out, in paragraph 24 on page 5 of the report:
There is the issue of the children’s ages, both natural and mental. Conventional attachment theory would have [X] being too young to move to living full-time with his father, given that he has spent most of his time with the mother and particularly given he has only spent a few days with the father over the past year or so. [Y]’s mental age would be lower than her natural age, so a similar concern might operate for her.
Further, in paragraph 35, Mr V says:
Conventional attachment theory suggests the mainly present parent would continue to be the mother, as the children have spent most of their lives in her care, while the father either worked away from home or was not available to them, owing to Ms Bosley’s relocation interstate. However, there are severe concerns raised by Mr Keeble about the mother’s parental capacity in relation to what he believes is her potential ongoing neglect of the children at times in favour of her gambling and alcohol. She denies these are factors in her life.
Without concrete indicators either way, it is not possible in this report to evaluate this parental capacity factor appropriately. Similarly, Ms Bosley has severe concerns about his parental capacity, particularly in view of her conviction that he is only interested in the children to the extent of punishing her in some way by having them removed from her as their main carer.
It is further stated, in paragraph 40 of the report:
The court would need to determine the impact in respect of issues, domestic violence, and parental capacities principally, on the proposed parenting arrangements. As noted above, the conventional attachment approach would be to keep [X], now aged two years and three months, with his mother principally, if the court reaches satisfaction about the adequacy of her present care for the children.
Usually, it would be seen as potentially disadvantageous developmentally for children under three years old to remove them from their principal carer into the care of the secondary carer, in this case intensified due to the long gap in time between the children spending any effective time with their father. A similar case would apply to [Y], given her Down Syndrome and its attendant needs.
I have given close consideration to these factors in making these orders, and find whilst there would be change for the children in living with the father, it will be a positive change, as there will be stability and support, and further, that the children will be returning to Darwin which, previously, had been their home.
The next factor I must consider is the practical difficulties and expenses of the children spending time with the other parent.
I have addressed this issue in the orders, whereby time with the children can be spent by the mother in Darwin and, if elsewhere, then airfares are to be shared equally between the parties.
The next factor is the capacity of each of the child’s parents and other persons to provide for the needs of the child, including emotional and intellectual needs.
Major concerns have been raised in the evidence as to the ability of the mother to care for the children, and the two main areas of concern are her capacity to cope emotionally and physically with the children, and her capacity to cope financially.
The ability to cope by the mother, it is submitted in the father’s material, was the catalyst for the episode in 2009, which led to the Domestic Violence Order and to the final breakdown of the relationship, as a fight ensued after he came home from being away to find the house filthy, the children neglected, and the parties financially broke.
Can I say, from the outset, that nothing I’m about to say should deflect from the acknowledgement that raising a young child suffering from Down Syndrome as well as other medical conditions would have been incredibly difficult for the mother, who was often on her own as well as having responsibility for the care of a second child.
But I cannot ignore the numerous notifications to family services and the incident where [X] nearly drowned, an incident that was not reported to the father, and where the mother, in cross-examination acknowledged that she chose not to tell him.
Further, the father reports that often the children were dirty and unkempt, and that head lice was untreated. It is further stated that when the children recently were seen in Darwin, they were again in this state. And further, that [Y] did not have her glasses or her blood testing machine with her.
The mother, in cross-examination, did little to disprove or displace these concerns.
The mother admitted that she forgot [Y]’s glasses, that she did not provide the blood test machine, nor did she think it necessary, and that she put [X] on the plane in wet shorts, despite the fact that it was a cold Melbourne winter, and that the wet shorts were not attributed to urine or faeces, but that he had had an accident with a water bottle.
Further the alleged ongoing neglect of the children whilst in Darwin is recorded in numerous notifications to Family Services. I cannot ignore this evidence.
Lastly I refer to the submissions by the father as to the mother’s drinking and gambling habits which resulted in the wastage of moneys and neglect to the children.
There is also evidence of continual financial reliance on hand-outs throughout, using several organisations in the Darwin area.
I have nothing, unfortunately, as to the set-up in Melbourne, as the mother chose to file no affidavit material as to what has happened since October 2009.
I therefore find in the balance of probabilities that the mother does not have the capacity or the ability to care for these children.
The next factor is the maturity, sex, lifestyle and background of the children including lifestyle, culture and traditions.
Whilst there has been reference to the cultural heritage of the father as a Maori, I do not intend to address this issue, as there is little before me by way of evidence that allows me to give weight to this factor.
The next relevant factor is the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
The mother’s attitude to her responsibilities has been tested but, unfortunately, I find that she has fallen short in proving that she has the attitude and capability to raise and care for the high needs of a child such as [Y].
Whilst the father’s attitude and ability is untested, I find nothing in the evidence to suggest that he will not do his very best, and that he is capable of providing for these children’s need.
Further, the psychological issues that the mother maintains the father has suffered was not borne out in the evidence, and Dr R’s report does not raise any concerns as to any mental health issues regarding the father.
Lastly, I note the father has been proactive in organising housing, and intends to stay with his cousin until such time as emergency housing is found.
Also he has sourced education options for his daughter and is prepared to do whatever is necessary to become the full-time carer for both children.
The last issue and the last factor is the family violence. There has been family violence.
It is my finding, however, that it was isolated to the times surrounding the final breakdown of the relationship and I suspect that both parties acted inappropriately in front of the children.
Whilst the domestic violence order was breached by the father, I accept the breaches were regarding communication only and that often these breaches were as a result of the fractured relationship and discussions by the parties over the future care of the children.
Whilst the mother maintains that the father has stalked her and subsequently made death threats through friends, there is nothing in the evidence to substantiate these claims.
I accept, however, that the father can be intimidating. I have witnessed that first hand by the faces he has made in the Courtroom.
I also accept that the domestic violence incident was one of the reasons why the mother left Darwin in October, but I find that it was not the driving force.
I further accept that the mother has had a fear of the father in the past, but I have difficulty in believing that the real fear still exists in her now.
There were certainly other factors at play that drove the mother to leave Darwin in October, such as the continual intervention of Family Services, the continual run-ins the mother was having with family and organisations, her inability to cope with the children, and her neglect of the children which nearly resulted in the drowning death of [X].
Further, the mother had lost her financial and emotional support from the father, who was now angry and resentful towards her, and it is an accumulation of all these events that led her to escaping to another state.
While there has been family violence, I find that there is no recent incident; that the family violence has been one to the mother only, and I do not accept that the children are at risk of family violence if they are in the care of the father.
Lastly, I must deal with parental responsibility. I find that due to the family violence issues, the protracted position of the mother and her inability and unwillingness to accept the father as being part of the children’s lives that the presumption of equal shared parental responsibility does not apply.
Conclusion
In conclusion, this was a very difficult matter made even more difficult by the mother’s anger, resentment, and reluctance to be part of this Court process, but at the end of the day, I must do what is in the best interests of the children as this is the paramount consideration, and not only what is best for them now but what is best for them in the future.
Having weighed up the primary considerations and additional considerations, and the objects of the Act, the only way forward for these children, the only way that they can continue to have a meaningful relationship with both parents for them both to have the parents in their life, to protect these children from harm, abuse and neglect as well as ensuring that they are receiving adequate and proper parenting to help them achieve their full potential, is to have the children in the primary care of the father.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 27 July 2010
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