BOYD & OWEN
[2016] FCCA 3209
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOYD & OWEN | [2016] FCCA 3209 |
| Catchwords: PROPERTY PROCEEDINGS – Whether just and equitable to make any property order – only asset available shares purchased by father from settlement of compensation claim arising from injuries sustained by him whilst on active service with ADF. |
| Legislation: Family Law Act 1975, ss.4(1), 4AB, 60B, 60CA, 60CB, 60CC; 61DA, 64B, 65D, 65DAC, 65DAE, 75(2), 79, 90SM(1), 90SM(3), 90SM(4), 90SF(3) |
| Cases cited: Moose & Moose (2008) FLC 93-375 Slater & Light [2013] FamCAFC 4 Gorman & Huffman [2016] FamCAFC 174 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Eaby & Speelman (2015) FLC 93-654 JG & BG (1994) 18 Fam LR 255 In The Marriageof Patsalou (1994) 18 Fam LR 426 Deiter & Deiter [2011] FamCAFC 82 M & M (1988) FLC 91-979 B & B (1988) FLC 91- 957 Bartel & Schmucker (No.3) [2012] FamCA 1094 Stanford v Stanford [2012] HCA 52 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Bevan & Bevan [2013] FamCAFC 116 Ferraro & Ferraro (1992) 16 FamLR 1 Waters & Jurek (1995) FLC 92-635 Briese & Briese (1986) FLC 91-713 Weir & Weir (1993) FLC 92-338 Alekovskiv Alekovski (1996) FLC 92-705 Watson & Ling [2013] FamCA 57 Mazorski v Albright (2007) 37 FamLR 518 Rice & Asplund (1979) FLC 90-725 B & B (1993) FLC 92-357 |
| Applicant: | MR BOYD |
| Respondent: | MS OWEN |
| File Number: | ADC 3092 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 18 & 19 August; 15 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Mr Hemsley |
| Solicitors for the Respondent: | Weatherly & Associates |
UPON NOTING that this matter has proceeded to Trial and that the Court has expressed concern at the father’s presentation and has continued the order for the father to be supervised by his parents
AND UPON FURTHER NOTING that in the event that the father wants the mother to agree to his time being unsupervised or if he wishes to vary the supervision order the mother has advised that she will be seeking the following:
(a)A report from a properly qualified drug counsellor with respect to the father’s drug use:-
i)They have seen the Federal Circuit Court documents and in particular the reports of Mr B, the Trial Affidavit of the mother and the Judgment of this Honourable Court;
ii)That the father has actively engaged in and completed a course of drug counselling;
(b)Six months of random drug testing conducted at the request of the mother and at the cost of the father on not more than one occasion per month with the tests to be supervised and conducted to the relevant Australian standard and with the results to be provided to the mother within 7 days of the request with such request being sent by text or email to a telephone number or email address to be supplied by the father.
(c)A report from a psychologist with respect to the father’s anger management confirming:
i)They have seen the Federal Circuit Court documents and in particular the reports of Mr B, the trial affidavit of the mother and the Judgement of this Honourable Court;
ii)That the father has actively participated in and completed a course to address his anger management issues.
(d)A report from a psychiatrist such report directed to the following matters:
i)They have seen the Federal Circuit Court documents and in particular the reports of Mr B, the trial affidavit of the mother and the Judgement of this Honourable Court;
ii)Any psychiatric diagnosis of the father;
iii)The effect of the father’s PTSD and its stability;
iv)The need for medication, his current medication regime and his compliance with the same;
v)Current recommended therapeutic treatments and the father’s compliance with the same;
vi)Any issues related to the father’s dependency on medication;
vii)Any other issues relevant to the father spending time with X.
ORDERS
The mother have sole parental responsibly for the child of the relationship X born on (omitted) 2011 (hereafter referred to as "the child").
The child shall live with the mother.
The child shall spend time with the father with all such time to be supervised by the paternal grandparents as follows:
(a)On the second and the sixth weekend of each school term from the conclusion of school or 5pm Friday until 4pm on the following Sunday;
(b)During the school holidays as follows:
(i)During the September/October short school holidays in 2016 for 5 days from 5pm on the Friday 7 October 2016 to 5pm on the following Wednesday 12 October 2016;
(ii)During the December/January long school holidays for two periods of 6 days at dates and times to be agreed between the parties;
(iii)Thereafter for the first half of all short school holidays from the conclusion of school or 5pm on the last day of school to 5pm on the middle Saturday;
(iv)Subject to paragraph 3(b)(v) herein for one half of the Christmas school holidays commencing 2017/2018 on a week about basis with the father to have the first week commencing from the conclusion of school or 5pm on the last day of school until 5pm on the next Friday and each alternate week thereafter at the same times;
(v)Notwithstanding the preceding care arrangements for the child the child shall be with the father from l.30pm Christmas Eve to l.30pm Boxing Day in 2016 and each alternate year thereafter PROVIDED that the child shall be with the mother for the same dates and times in 2017 and each alternate year thereafter;
(vi)By telephone at reasonable times;
(vii)Such other times as may be agreed between the parties.
It shall be a condition of the child's time with the father that:
(a)All of the child's time with the father is supervised by either or both of the paternal grandparents or by either or both of Ms K or Mr N;
(b)Any overnight time shall be spent at the home of the paternal grandparents;
(c)All handover' s shall occur at the (omitted) Shopping Centre between the mother and either or both of the paternal grandparents with the father to remain in his motor vehicle;
(d)In the event that the paternal grandparents are willing to continue to supervise the father's time they shall within 28 days confirm their willingness to do so by providing a letter to the mother in which they refer to having read and being willing to comply with the terms of the Legal Services Commission Brochure “Should I Supervise”.
(e)The mother do file those letters in this Court by Affidavit within 14 days of her receipt of same;
(f)The paternal grandparents or either of them shall advise the mother in the event of them having any concerns with the physical or emotional safety of X and shall end the father's time upon having those concerns.
The father is restrained and an injunction is granted restraining him from:
(a)Having the child in any car in which he is the driver;
(b)Removing the child from school without the written permission of the mother;
(c)Removing the child from the State of South Australia without the written permission of the mother;
(d)Consuming alcohol or illicit or non-prescription drugs for a period of 24 hours before he is in the presence of the child or while he is in the presence of the child.
Both parties are restrained and an injunction granted restraining each of them from:
(a)Denigrating the other or making derogatory comments about the other of them or their partners or family in the presence of the child or allowing anyone else to do so.
Notwithstanding the terms of paragraph 1 herein the mother shall:
(a)Advise the father of the school which the child attends and any change to that school and the details of same;
(b)Authorise the father to receive at his own expense copies of all newsletters, notices, school reports and the like and to obtain copies of all school photos and to attend at parent teacher interviews and other functions at which parents would normally attend;
(c)Advise the father as soon as practicable of any significant injury or illness and if practicable consult with the father on any urgent medical treatment;
(d)Keep the father advised of the course of any such illness or injury and the progress of any treatment.
For the purposes of facilitating communication both parties shall ensure that the other of them has their up to date mobile telephone number and, an email address if available.
The applications for settlement of de facto property settlement be dismissed.
All other applications be dismissed and removed from the list of cases awaiting final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Boyd & Owen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3092 of 2014
| MR BOYD |
Applicant
And
| MS OWEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Boyd ‘the father’ and Ms Owen ‘the mother’. The case relates to final parenting arrangements for the parties’ child – X born (omitted) 2011 and how property is to be allocated between them following a de facto relationship of approximately 8 years, albeit one broken by many separations.
Both parties are from (omitted). They met in 2002, when they were teenagers. They began to live together in 2005 and finally separated in February 2013, in difficult and traumatic circumstances. It is the mother’s case that the separation was precipitated by the father’s aggressive behaviour towards her and his increasing opiate dependency.
Ms Owen now lives in suburban Adelaide. She and X moved to Adelaide in 2014. Ms Owen has secure employment with the (employer omitted). She has been with the company for 11 years. She has also re-partnered. It is her case that her life and that of X is settled and stable which is in marked contrast to the life of Mr Boyd.
X has lived with the mother for the whole of his life to date. He commenced kindergarten in (omitted) at the start of this year. X is a happy and well-adjusted child. Ms Owen was described by Mr B, the writer of two family reports for the court, as being ‘child-focussed’ and of having an engaging demeanour. X was observed to be settled and comfortable in his mother’s care.
Mr Boyd lives in (omitted) either with his parents or close by in (omitted), a neighbouring hamlet with his current partner, Ms C. Mr Boyd receives a disability pension from the Department of Veteran’s Affairs. Mr Boyd was an (occupation omitted) with the (employer omitted) between (omitted) 2009 and (omitted) 2013. He was on active service in (country omitted) between (omitted) 2010 and (omitted) 2010.
In mid-2010, whilst in (country omitted), Mr Boyd suffered an accident when he slipped and fell whilst on patrol and carrying a military pack and body armour. He damaged his back and knee. His back injury caused him significant levels of pain. He was prescribed OxyContin, a narcotic drug. It was this injury, in part, which led to him being granted a disability pension on the basis of permanent impairment. He also received a lump sum payment.
Subsequent to his injury, Mr Boyd was also diagnosed with Post Traumatic Stress Disorder (PTSD); and chronic adjustment disorder, with depressed mood; both of which arose from his war service. He also developed an opiate dependence. Mr Boyd does not dispute that his psychiatric health has been significantly compromised since his return from (country omitted).
In the context of the level of his disability being assessed for compensation purposes, Mr Boyd was referred to Dr M, a psychiatrist who was asked to provide an opinion on Mr Boyd’s psychiatric condition, particularly whether it was stable and permanent. In February 2014, Dr M wrote as follows:
“Mr Boyd served for some 10 months in (country omitted) in 2010. During his time in (country omitted), he witnessed deaths of fellow soldiers, the aftermath of atrocities and came under close personal fire in battle. He suffered an injury to his back whilst negotiating mountainous terrain. Mr Boyd’s psychiatric conditions, as I indicated in my last report, can essentially be considered stable and permanent.”
At this stage Dr M also noted that Mr Boyd continued to suffer chronic pain and physical disability which rendered him ‘prone to irritability and anger’. As a consequence of his condition, Mr Boyd does not react well to stressful situations. For obvious reasons, court proceedings relating to parental arrangements are stressful and difficult.
The progress of this case to final hearing has been far from smooth. Mr Boyd has had legal representation in the past but represented himself at final hearing. He did not file affidavit material. He has been recalcitrant in attending court ordered conciliation and alternative dispute resolution processes.
Significantly, Mr Boyd did not present well in court. I mean him no disrespect but he was at times disordered in thought and emotionally reactive. More importantly, he lost his composure on several occasions and directed tirades of abusive comments towards Ms Owen, who always maintained her equilibrium, in the face of extremely provocative comments impugning her personal honour.
I was extremely concerned about Mr Boyd’s psychological wellbeing and after the proceedings were adjourned on the afternoon of 19 August 2016, asked Ms C to make sure that Mr Boyd was not left on his own but had some emotional support. Mr Boyd’s behaviour was so extreme that I took the unusual step of asking him directly whether he was under the influence of some illicit drug. He denied that he was.
Mr Boyd acknowledges drug use from his mid adolescence onwards, reporting the recreational use of cannabis, amphetamines and methamphetamines. Ms Owen also acknowledges such drug use with Mr Boyd, but asserts that she has been abstinent for many years. She has reason to believe that Mr Boyd has not been similarly abstinent as he has failed a number of court ordered drug tests which have returned positive results for both cannabis and amphetamines.
Mr Boyd commenced these proceedings in August 2014, some 4 months or so after Ms Owen and X had moved to Adelaide. At separation, the family have been living in Brisbane in the vicinity of the (employer omitted). Mr Boyd was discharged from the (employer omitted) in May 2013.
There is some controversy which is now of historical significance only, as to whether Mr Boyd fully agreed with X relocating to Adelaide. It is Ms Owen’s position that she felt socially isolated in Brisbane and wished to be closer to her parents in Adelaide. In these circumstances, she arranged the transfer of her employment and Mr Boyd gave his approval indicating that he too would move to Adelaide.
It is clear that the parties discussed the issue to some degree and Mr Boyd did not actively resist the move. Like the mother, he has strong family connections in South Australia. Ms Owen planned to drive in a leisurely fashion from Brisbane to Adelaide via (omitted), so that she and X could have a holiday together and both she and Mr Boyd could catch up with family. They planned to meet Mr Boyd first in Sydney and then in (omitted).
It is Ms Owen’s evidence that she assisted Mr Boyd to book a removalist to transport his affects to Adelaide but these plans were derailed when Mr Boyd was admitted to hospital with a drug overdose. In all these circumstances, Mr Boyd elected to stay in (omitted) with his parents rather than move on to Adelaide with Ms Owen and X. Ms Owen and Mr Boyd had discussed Mr Boyd entering a drug rehabilitation programme in Adelaide.
It is approximately 450 kilometres between (omitted) and Adelaide. The drive takes approximately 5 hours. From time to time, Mr Boyd has indicated an intention to move to Adelaide to be closer to X. However, at the current time, this is not an option for him. The logistical issues are one but by no means the major of the issues arising in this difficult case.
Originally, it was Mr Boyd’s application that on both an interim and final basis, X should live with him and spend substantial and significant time with his mother. This can only be described as an ambit claim. In response, Ms Owen proposed professionally supervised time and thereafter any time be subject to supervision by X’s paternal grandparents.
At this stage, it was Ms Owen’s position that Mr Boyd had significant unresolved issues in respect of his drug use both illicit and prescribed and remained emotionally reactive. She conceded that X knew and loved his father but, from her perspective, she found it extremely difficult to communicate with Mr Boyd without him abusing or demeaning her in some way.
It is the submission of Mr Hemsley, counsel for Ms Owen that Mr Boyd’s behaviour during the court proceedings provides graphic corroboration that what Ms Owen has said about the nature of her dealings with Mr Boyd is likely to be correct. Mr Hemsley contends that it is to his client’s great credit that she is prepared to continue to facilitate X spending time with his father in such difficult and emotionally fraught circumstances.
On 30 September 2014, orders were made formalising X’s living arrangements with his mother. Interim orders were also made inaugurating a process of supervised time between X and his father. The time was to be supervised by the paternal grandparents. Orders were also put in place to subject Mr Boyd to random supervised drug tests.
Orders for such supervised time have continued until the present time. The time has oscillated, on a fortnightly basis each month between (omitted) and Adelaide. Mr Boyd’s father has borne the burden of the driving involved as Mr Boyd himself has had issues to do with losing his licence.
In addition, as previously indicated, he has failed a number of supervised drug screen tests and has been non-compliant with other requests to undergo drug screening. Ms Owen’s position is that Mr Boyd has disregarded previous court orders applicable to X and has removed him from his child care in Adelaide.
It was against this difficult background that the involvement of Mr B, an experienced family consultant and social worker. He has prepared two family reports. In June of 2015, Mr B described Mr Boyd as exhibiting “tense mannerism congruent with his diagnosis of PTSD.” Mr Boyd indicated to Mr B that he had felt marginalised whilst living in Brisbane. His move to (omitted) was meant to be “transitory and brief” but had become extended because of his need for support from his parents and friends. In (omitted), Mr Boyd acknowledged becoming involved with a “drug-using crowd, and [to] self-medicating by using methamphetamine and cannabis for pain relief”. [1]
[1] See Family Report dated 4 March 2015 at paragraphs 25, 28 & 29
A year later, in June of 2016, Mr B described Mr Boyd as follows:
“Mr Boyd, at interview, was extremely passionate, bordering on being intrusive, with signs of his PTSD clearly evident. It is probable that flashpoints such as handovers will remain areas of conflict, Mr Boyd will likely struggle with the imposition of boundaries such as timeframes and other conditions as stipulated with the Orders. For this to be successful, he will need to acquiesce to the limits lest he jeopardise all time-spending with the child.”[2]
[2] See Family Report up-date dated 14 June 2016 at paragraph 49
Mr B opined that it would be helpful to all concerned if Mr Boyd provided an up to date psychiatric report and evidence that he was willing to engage with appropriate treatment. Mr B was also troubled by the failure of Mr Boyd to provide conclusive evidence that he had been drug free for an extended period of time.
However, of great note, when Mr Boyd was observed engaging with X, Mr B noted that Mr Boyd was able to put aside his PTSD symptoms and maintain what was described as an exceptional interaction with X, which was child focussed with conversation and affection flowing freely. Accordingly, in Mr B’s view, X had a very valuable relationship with his father.
This view was confirmed by Ms Owen. She acknowledged to Mr B that X loved his father and was happy to spend time with him. However, she reported that Mr Boyd was conflictual at handover and frequently wished to change arrangements. She also reported that Mr Boyd had made threats to her.
In these circumstances, Ms Owen shares Mr B’s concerns that Mr Boyd may subject X to rapid and unpredictable shifts in his mood or will be unable to control his temper which may put X at some form of risk of sustaining psychological or even physical harm. She is also concerned that Mr Boyd has not as yet come to terms with his drug abuse issues or the traumas sustained by him whilst on military service.
As a consequence of these matters, Ms Owen contends that currently it would represent too much of a risk for X if his time with his father moves to being wholly unsupervised, notwithstanding the extremely positive relationship between the two and the huge logistical difficulties arising because Mr Boyd lives in (omitted) and Ms Owen and X live in Adelaide. As such, it is her position that regrettable as it is, the court has no viable alternative whilst X’s safety remains the paramount consideration other than to continue supervision notwithstanding all the problems arising.
On the other hand, it is Mr Boyd’s position that given Mr B’s assessment of him as a loving father to X and the strength of the relationship he has with his son, it is appropriate for the court to move to a regime of unsupervised time. In this regard, he points to the burden the travel is placing on his father who has business commitments in (omitted) which are suffering because he has to drive to Adelaide regularly and upon his mother who has not recently enjoyed good health.
Failing his application to release his time from supervision, Mr Boyd seeks some relaxation of the supervision and the possibility of spending more rather than less time with X. In this regard, he proposes his current partner, Ms C, as an appropriate supervisor citing that she is also a parent with extensive experience of caring for her two children who were aged 2 and 1.
Ms Owen and those advising her realise that long term supervision is not likely to be a permanent solution to the problems arising in this case. She also realises that Mr Boyd is likely to become more and more frustrated with such a situation which of itself is highly counter-productive and not helpful to X.
In this context, the Full Court in a number of cases,[3] has pointed out the potential pitfalls of the court making orders at the final hearing stage for supervised time on an indefinite basis. In Moose May J said as follows:
“In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders.”
[3] See Moose & Moose (2008) FLC 93-375; Slater & Light [2013] FamCAFC 4; and Gorman & Huffman [2016] FamCAFC 174
In these circumstances, Mr Hemsley, counsel for Ms Owen, has proposed a number of mechanisms which would need to be satisfied before Mr Boyd’s time with X moves to being unsupervised. These proposals are informed by the realisation that the solutions to the dilemmas arising in the case lie with Mr Boyd rather than with Ms Owen or with any orders which the court may construct.
In this context, Ms Owen proposes that before the court gives any consideration to any relaxation of Mr Boyd’s time with the child the onus be on Mr Boyd to provide the following:
·a report from an appropriate drug counsellor indicating that he has actively engaged in and completed a course of drug counselling;
·successful completion of a six month course of random supervised drug screen testing;
·a report from an appropriate psychologist indicating that he has actively engaged in and completed a course to address his anger management issues;
·a psychiatric report in respect of any current psychiatric diagnosis of any psychiatric condition currently suffered by him, particularly in respect of PTSD and any dependency on medication, together with a prognosis and details of any treatment prescribed including medication.
Mr Hemsley proposes that these matters be memorialised in notations prefacing any orders which the court makes. In Mr Hemsley’s submission, compliance with these proposals within the timeframe of the next twelve to eighteen months will provide a path away from supervised time and so avoid the unviability of indefinite supervision.
However, in regards to this, no matter the degree of the sympathy the court may feel for Mr Boyd who has been injured both physically and mentally whilst honourably serving his country, the ball must remain in his court, prior to any relaxation of supervision.
From Ms Owen’s perspective, these proceedings have been both financially and emotionally onerous. As a consequence, notwithstanding the potential for the outcome to be open-ended, she wishes them finalised at this stage. I can well understand why she would feel this way. In these circumstances, she proposes the following final orders subject to the formal notifications which I have attempted to summarise above:
“1.The mother have sole parental responsibly for the child of the relationship X born on (omitted) 2011 (hereafter referred to as "the child").
2.The child shall live with the mother.
3.The child shall spend time with the father with all such time to be supervised by the paternal grandparents as follows:
(a)On the second and the sixth weekend of each school term from the conclusion of school or 5pm Friday until 4pm on the following Sunday;
(b)During the school holidays as follows:
(i) During the September I October short school holidays in 2016 for 5 days from 5pm on the Friday 7 October 2016 to 5pm on the following Wednesday 12 October 2016;
(ii) During the December I January long school holidays for 2 periods of 6 days at dates and times to be agreed between the parties;
(iii) Thereafter for the first half of all short school holidays from the conclusion of school or 5pm on the last day of school to 5pm on the middle Saturday;
(iv) Subject to paragraph 3(b)(v)'herein for one half of the Christmas school holidays commencing 2017/2018 on a week about basis with the father to have the first week commencing from the conclusion of school or 5pm on the last day of school until 5pm on the next Friday and each alternate week thereafter at the same times;
(v) Notwithstanding the preceding care arrangements for the child the child shall be with the father from l.30pm Christmas Eve to l.30pm Boxing Day in 2016 and each alternate year thereafter PROVIDED that the child shall be with the mother for the same dates and times in 2017 and each alternate year thereafter;
(vi) By telephone at reasonable times;
(vii) Such other times as may be agreed between the parties.
4.It shall be a condition of the child's time with the father that:
(a)All of the child's time with the father is ,supervised by either or both of the paternal grandparents or by either or both of Ms K or Mr N;
(b)Any overnight time shall be spent at the home of the paternal grandparents;
(c)All handover' s shall occur at the (omitted) Shopping Centre between the mother and either or both of the paternal grandparents with the father to remain in his motor vehicle;
(d)In the event that the paternal grandparents are willing to continue to supervise the father's time they shall within 28 days confirm their willingness to do so by providing a letter to the mother in which they refer to having read and being willing to comply with the terms of the Legal Services Commission Brochure “Should I Supervise”.
(e)The mother do file those letters in this Court by Affidavit within 14 days of her receipt of same;
(f)The paternal grandparents or either of them shall advise the mother in the event of them having any concerns with the physical or emotional safety of X and shall end the father's time upon having those concerns.
5.The father is restrained and an injunction is granted restraining him from:
(a) Having the child in any car in which he is the driver;
(b)Removing the child from school without the written permission of the mother;
(c)Removing the child from the State of South Australia without the written permission of the mother;
(d)Consuming alcohol or illicit or non-prescription drugs for a period of 24 hours before he is in the presence of the child or while he is in the presence of the child.
6.Both parties are restrained and an injunction granted restraining each of them from:
(a)Denigrating the other or making derogatory comments about the other of them or their partners or family in the presence of the child or allowing anyone else to do so.
7.Notwithstanding the terms of paragraph 1 herein the mother shall:
(a)Advise the father of the school which the child attends and any change to that school and the details of same;
(b)Authorise the father to receive at his own expense copies of all newsletters, notices, school reports and the like and to obtain copies of all school photos and to attend at parent teacher interviews and other functions at which parents would normally attend;
(c)Advise the father as soon as practicable of any significant injury or illness and if practicable consult with the father on any urgent medical treatment;
(d)Keep the father advised of the course of any such illness or injury and the progress of any treatment.
8.For the purposes of facilitating communication both parties shall ensure that the other of them has their up to date mobile telephone number and, an email address if available.”
As previously indicated, the progress of the case through the court has been far from smooth. The delays and difficulties have lain far more with Mr Boyd than with Ms Owen. He has been unrepresented since February of 2016. He has not filed any affidavit material since April of 2015.
In this context, I acknowledge that he is a person who is not adept at the process of putting his thoughts and position into words in a formal way. However, as a consequence of these matters, it has not always been easy to determine what his position is in respect of the matter. This has particularly been the case in respect of financial issues.
Ms Owen raised financial issues in September of 2014. In her supporting affidavit material, she deposed that she had no significant savings and few assets other than her furniture and personal effects. At that stage, she was earning $820.00 per week. She continues to receive some social security but very little child support for X. In respect of Mr Boyd, she deposed as follows:
“I do not know what assets or funds the father does or does not have save that he received a payout of $163,000.00 and earned a very good income prior to ceasing employment.”[4]
[4] See mother’s affidavit filed 26 September 2014 at paragraph 110
It remains Ms Owen’s position that she knows little, if anything, about Mr Boyd’s financial position. Mr Boyd failed to attend a conciliation conference, which was scheduled on 4 December 2014, although his then solicitor did attend. However, at that stage, Mr Boyd had not filed a statement of his financial circumstances or any other supporting material.
Regrettably, Mr Boyd failed to attend a re-scheduled conciliation conference on 25 February 2015. Costs were awarded against him. However, on 8 December 2014, Mr Boyd did file a financial statement and an affidavit in support. He deposed that he had been suffering a “man flu” in respect of the second conference and had not been notified in respect of the first. In respect of Ms Owen’s application for property settlement, he deposed as follows:
“I agree with an equal distribution of the assets of the relationship but say that my payout for my permanent disability ought to be excluded from the asset pool given that it relates solely to the injury I sustained and was paid out after separation.”
Annexed to both Ms Owen’s originating affidavit and her trial affidavit are a number of documents including the psychiatric report of Dr M to which reference has already been made. These various documents are dated between January and April of 2014.
In court Mr Boyd has expressed his annoyance that Ms Owen has in some way secured access to these documents which in his view remain his property which he did not authorise to be released to Ms Owen. Other than these documents Mr Boyd has provided no evidence regarding his situation in respect of his payment on discharge from the (employer omitted).
In his financial statement Mr Boyd disclosed that he had assets to the value of $522,421.25. This sum was made up by modest savings; a motor vehicle worth approximately $18,000.00; household contents of approximately $4,000.00; and 500,000 shares in a company known as (omitted). These shares were estimated to be worth $500,000.00.[5]
[5] See father’s statement of financial circumstances filed 8 December 2014
Mr Boyd has made no further reference to this firm and the shares he holds in it in any of his affidavit material which is in any event somewhat scant. In his oral evidence to the court he deposed that he had invested his military payout in the firm via a person whose name he could not fully recall other than his Christian name was Mr P. He had been introduced to Mr P by a military mate who had told him that the company in question was a good investment.
The company apparently owns technology which would (omitted). However, it was Mr Boyd’s evidence that his investment was likely to be now worthless as he had not had any contact with either the company or Mr P in recent times.
Those advising Ms Owen have arranged to search the company records of (omitted).[6] The company was incorporated in March of 2011. It is described as an unlisted public company. It remains registered but in May of 2016 was apparently subject to a strike off action. Ms Owen is not able to disclose any further information about the company.
[6] See exhibit A
In these circumstances, it is her position that the following orders should be made in settlement of her claim for a de facto property settlement:
“That in full and final settlement of claims between the parties for settlement of property under Part VIII of the FamilyLawAct1975 (as amended), the father do transfer to the mother 250,000 (being 50%) of his (omitted) shares Security holder Reference No. (S.R.N) (omitted);
That the mother do indemnify the father and keep him forever indemnified with respect to the following: -
any monies owed by the father and/or the mother to the mother's family members;
all debts and liabilities of the mother including personal loan, credit card and store account debts in the sole name of the mother or severally with others;
That the father do indemnify the mother and keep her forever indemnified with respect to the following: -
any monies owed by the father and/or the mother to the father's family members;
all debts and liabilities of the father including personal loan, credit card and store account debts in the sole name of the father or severally with others;
That each party be solely responsible for and indemnify the other against any liability encumbering any item of property to which that party is entitlement pursuant to these Order;
The father hereby covenants and agrees that he shall have no interest either at law or in equity in the mother's motor vehicle, furniture or effects in her possession.
The mother hereby covenants and agrees that she shall have no interest either at law or in equity in the father's motor vehicle, furniture or effects in his possession.
Hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted for or by the and henceforth each party is restrained and an injunction is granted restraining the parties and each of them from pledging the credit of the other except as provided in this Order.
The mother and father do execute all documents necessary to enable all provisions of these orders to be carried into effect and should either party refuse or neglect to sign any documents within seven (7) days of being requested to do so, the Registrar or Senior Registrar of the Family Court of Australia at Adelaide shall upon proof by affidavit of such refusal or failure or neglect be empowered to execute all necessary documentation and if necessary to do so settle the same and the party in default shall pay the other party’s costs.”
Although Mr Boyd asserts that his holding in (omitted) is worthless, he resolutely resists any transfer of the shares to Ms Owen. It being his position that they should remain quarantined from these proceedings because the source of funds for their acquisition was his military payout.
These proceedings are directed to resolving these difficult and complex issues between the parties and, if at all possible, ending any financial relationship between them. In determining what is the appropriate outcome, for X, his best interests remain the paramount or most important consideration.
The evidence
These proceedings were extremely difficult for all concerned. Mr Boyd presented in an emotionally volatile and reactive fashion at times being extremely angry. His anger was mostly directed towards Ms Owen. However, more often than not, he was able to control his outbursts and frequently apologised for them. I was never frightened by Mr Boyd. He seemed liked a person who was subject to torment.
In the circumstances, it was hard for me not to feel sorry for Mr Boyd and sympathetic to his situation. His feelings of distress were obviously genuine and he did not appear to me to be a bad person, rather he seemed to be one who was unable to bridal his immediate emotional feelings which caused him to be overwhelmed by his feelings.
In all these circumstances, I attempted from time to time to reason with him, reminding him that for obvious reasons, his very many outbursts were of no assistance whatsoever to him in the proceedings. Regrettably, he was unable to respond to such guidance. As such, his presentation in court greatly concerned me.
As previously indicated it occurred to me that his extreme lability of mood suggested to me that he might be under the influence of some illicit drug which he denied. I was also concerned at the prospect of him being alone overnight after the first day of the proceedings had concluded.
The main focus of Mr Boyd’s outbursts was Ms Owen, whom he subjected to a stream of abusive criticism which I have not fully noted but included at the milder end of the scheme of things that she was a lying, cheating person, with no morals.
The parties have known each other for a very long time indeed since they were adolescents together. Their relationship was undoubtedly at times a difficult and turbulent one marked by mutual drug use. In this regard, I accept Ms Owen’s evidence that she has overcome any issues which she had with drugs. The evidence in respect of Mr Boyd in this regard is far more problematic.
Ms Owen presented well in court. She responded to the abuse directed at her by Mr Boyd with equanimity. Wisely I think in all the circumstances prevailing, Mr Boyd elected not to cross-examine Ms Owen. I was grateful for his restraint in this regard.
However, this decision did not prevent Mr Boyd engaging in further outbursts against Ms Owen. I acknowledge Mr Boyd’s service in extremely arduous circumstances to his country. Mr Boyd is entitled to credit for his service and his nation’s thanks for it. He does however have a considerable chip on his shoulder that Ms Owen did not properly support him whilst he was overseas.
It is common ground between the parties that whilst Mr Boyd was in (country omitted), Ms Owen became involved with another person and became pregnant which later led to a termination. I acknowledge that these are extremely sensitive and personal matters and it is highly regrettable that it is necessary that they be raised in these reasons for judgment.
However, Mr Boyd himself frequently raised the issue during the proceedings and it was an obvious source of anger and bitterness for him. It seems highly probable that it will be very difficult for Mr Boyd to overcome his obvious bitterness for Ms Owen or develop strategies to prevent Ms Owen being exposed directly towards it.
To her great credit, Ms Owen did not react to any of Mr Boyd’s outbursts. She retained her composure. My impression was that she regarded these tirades as common place. In all these circumstances, it is my view that it is greatly to her credit that she has supported X’s relationship with his father in what I regard as extremely challenging circumstances.
I appreciate that the proceedings were extremely stressful for Mr Boyd and his psychological condition is such that he is particularly susceptible to such pressures. However, at the conclusion of the proceedings, I was initially minded to suspend any ongoing arrangements for Mr Boyd to spend time with X, pending the production by him of some form of psychiatric assessment. However, Mr Hemsley, on the instructions of his client, urged me not to take what Ms Owen regarded as being a detrimental step for X.
These difficulties were compounded by Mr Boyd being unrepresented and the fact that he had filed no recent material and certainly nothing in respect of the trial, which was initially given its trial listing on 8 December 2015.
Mr B’s first family report was released to the parties in mid-June of 2015, some months prior to the initial trial listing, which was on 16 & 17 November 2015. At this stage, Mr B was sanguine that the parties were likely to be able to reach a consensual outcome in respect of final arrangements for X. At this stage, Mr B described Mr Boyd as being “passionately child-focussed and motivated to be involved with the child”. Mr B also assessed Mr Boyd at this stage of being capable of self-regulation notwithstanding his PTSD.
Against this background, Mr Boyd advised that he was going to come to Adelaide to live permanently. He also indicated his plans to play football with a team in Adelaide and advised the court that he had been concentrating on his fitness by regular gym attendances.
In these circumstances, Ms Owen was open to vacating the trial so that Mr Boyd could move to Adelaide where she hoped he would have access to more professional support. I also accept that Ms Owen believed that it would be easier for suitable arrangements to be made for X to be exchanged between the parties more often and with supervision being gradually reduced particularly if Mr Boyd was able to establish that he remained drug free.
Regrettably, a drug screen test for 24 November 2015 provided a positive result for cannabinoids. This followed a similar result in May of 2015 and a positive result for both amphetamines and cannabinoids on 20 October 2015. In February of 2016, Mr Boyd declined to undertake a drug screen test. A few days later his solicitor withdrew from the proceedings.
On 21 November 2015, there was an altercation between the parties at handover which resulted in a family violence order being granted in Ms Owen’s favour. At the time, I accept that Mr Boyd subjected Ms Owen to abuse which occurred in X’s presence and hearing. I also accept that Mr Boyd assaulted her when he grabbed her telephone from her and squeezed her hand hard whilst referring to her as a “fucking bitch”.
Any prospect of a negotiated outcome evaporated. As a consequence, the matter was refixed for trial on 18 & 19 August 2016. In addition, given the extreme deterioration in the parties’ parenting relationship, it also seemed to me to be expedient to have Mr B update the family report. This occurred in June of 2016.
At this stage, Mr B reported of Ms Owen as follows:
“Ms Owen was interviewed alone in the report writer’s rooms. She readily engaged and appeared child-focused. From her demeanour there was no indication of mood or thought disorder. Her mood was upbeat and she hoped that her new relationship would continue to develop and flourish. Litigation was reported as stressful and she was hopeful that a Trial could be avoided. She considered that a legal framework was required.”[7]
[7] See updated family report dated 14 June 2016 at paragraph 34
Mr Boyd reported to Mr B that his driver’s licence had been returned to him in March 2016. He had lost his driver’s licence as a consequence of a drug driving offence but his licence had been restored following him providing a clean drug screen test and having completed a drug dependency course. Mr Boyd also expressed frustration to Mr B that X was regularly cared for by Ms Owen’s new partner. Significantly, Mr Boyd indicated that he had successfully engaged with a psychiatrist in Adelaide from whom he was receiving treatment for PTSD.
Mr Boyd reported to Mr B that he no longer intended to relocate to Adelaide for financial reasons and because he had become involved with Ms C. However, Mr Boyd continued to express frustration with both the costs of his travel to and from (omitted) and the burden which supervision placed on his parents. In this context, Mr B reported as follows:
“The financial cost of transport to Adelaide, (omitted) and return was extremely high given his limited financial position. He estimated having travelled 75,000 km in the last 12 months. The continued criteria of supervision by the paternal grandparents placed them at a financial disadvantage as well as encroaching on their social time. He alleged that the paternal grandparents only have one or two days free per fortnight with this free time committed to supervision and transport between Adelaide and (omitted).”[8]
[8] Ibid at paragraph 27
In summary, at the conclusion of his updated family report, Mr B viewed X as being securely attached to each of his parents with whom he behaved in a loving and age appropriate way. Mr B had no concerns about X’s presentation in any way. Mr Boyd was noted as being comfortable with X.
In all these circumstances, Mr B was in favour of supervision continuing for a period of approximately six months subject to Mr Boyd continuing to undertake psychiatric treatment and being subject to a random drug screen testing regime.
Thereafter, if a favourable psychiatric report was forthcoming and the drug testing results were negative, he recommended that Mr Boyd commence unsupervised time with X, on alternate weekends from Friday after school until Monday morning, with half of each school holiday period. Mr Boyd was open to such an outcome.
In this context, Mr B opined as follows:
“The perception of risk remains at the core of this dispute, principally involving the mental health and drug abuse of Mr Boyd. Remarkably, both parties are largely in agreement in regards to unsupervised time-spending with the issue being for how long of a timeframe for this to transition.”[9]
[9] Ibid at paragraph 48
Mr Boyd was directed to file his affidavit material for trial on or before 21 July 2016. He has not complied with this order. Ms Owen was directed to file her material for trial on or before 4 August. She complied with this direction late filing her material on 15 August 2016. In the timeframe between the release of the family report and the direction for filing affidavit material, Ms Owen’s solicitor withdrew and then re-engaged with the proceedings. This caused some uncertainty as to what was planned for the hearing.
In the absence of material from Mr Boyd and prior to Ms Owen’s material being received with the re-engagement of her solicitor in the light of Mr B’s view that there was a probability that the various issues between the parties could still be resolved consensually, the court arranged for a Legal Services Commission conference to be held. Ms Owen attended this conference but Mr Boyd did not.
At the outset of the trial, Mr Boyd applied to adjourn the proceedings. I refused his application which was not supported by Ms Owen. From her perspective the proceedings had been on foot for around two years during which Mr Boyd had not been diligently engaged with them. In this period the case had been previously listed for trial and Mr Boyd had been on notice of the current trial date for approximately ten months.
Significantly, from my perspective, since the release of the updated family report, Mr Boyd had taken no steps to secure any medical evidence regarding his current level of psychiatric functioning. In addition, I was concerned that there was a level of ambivalence about the status of his current level of drug use.
In these circumstances, and given the history of the matter up to this stage, I was concerned that a further adjournment of the proceedings would not be utilised proactively by Mr Boyd, either to obtain the evidence needed to assist his case or to gain legal representation. Regretfully, I formed the view that Mr Hemsley’s summation of the situation that “Mr Boyd blamed everyone but him” was likely to be an accurate one.
In his oral evidence, I formed the view that Mr Boyd was a mixture of evasion, self-justification and at times, disarming honesty. As previously indicated at times he was also very angry. He acknowledged against self-interest having been apprehended on two occasions for driving whilst under the influence of amphetamines in March and mid-2015. It was his evidence that he is now drug free.
Mr Boyd’s view of Ms Owen is a mixture of negatives and positives. He conceded to Mr B that she is a good mother who provides a high standard of care to X. However, on the other hand, he blames Ms Owen for restricting his relationship with X. In this context, he is not able to acknowledge that she has in fact supported this relationship in difficult circumstances which include some provocative and irresponsible actions emanating from him.
Mr Boyd did not attempt to call any evidence from his parents. In his oral evidence, he indicated that his father operated a small business in (omitted) which (business omitted). The business was open seven days per week. As a consequence, it was very difficult for Mr Boyd Senior to leave the business to drive to Adelaide particularly as the business was not trading particularly well at present.
Mr Boyd further deposed that his mother worked part-time in a (employer omitted) in (omitted). She was able to drive but had recently had a knee replacement. Mr Boyd indicated that he and his parents would like to spend time with X at Christmas.
Mr Boyd deposed that he was planning to remain living in the (omitted) area as a consequence of his relationship with Ms C. He deposed that he receives a totally and permanently incapacitated pension from the Department of Veteran’s Affairs together with a military superannuation pension. He receives approximately $1,150.00 net per fortnight. He will receive the pension until he turns sixty years of age.
Mr Boyd considered that it was conceivably possible that he could return to the workforce as a (occupation omitted). However, given his previous experience as an (occupation omitted) he did not believe that he was particularly attractive to prospective employers. He has no current plans to retrain.
At present, Mr Boyd is not receiving any prescribed medication apart from sleeping tablets. He has been diagnosed as having a four-disc bulge and spondylosis at the thoracic level. He treats this with physiotherapy, acupuncture, yoga, pilates and particularly self-directed gym work.
Mr Boyd sees his general medical practitioner regularly in (omitted) and has been referred by Veteran’s Affairs to a psychiatrist in Adelaide, Dr D. He indicated that he had not seen the psychiatrist earlier because of a dispute with the Department as to how his travel expenses were to be met. This dispute has now been resolved and Mr Boyd has indicated a willingness to continue to consult Dr D. Mr Boyd does not anticipate that he will require any orthopaedic surgery in the foreseeable future.
It was Mr Boyd’s evidence that he received two lump sum payments from the (employer omitted), in amounts of $143,000.00 and $63,000.00 respectively. He was currently considering whether to challenge these payments and had been referred by the RSL delegate to a large firm of solicitors who specialise in personal injury and administrative law matters.
Mr Boyd’s evidence regarding what he did with his lump sums was concerning. It seems unusual that Mr Boyd would invest such a large sum of money in what seems to have been a highly speculative venture of which he had no specific expertise. However, he remained adamant that his friend had told him that it was a good prospect on which he was getting “in on the ground floor” and he had trusted his mate. He also, ostensibly at least, appeared resolved to the loss of his money.
Mr Boyd acknowledged that he had retained some of his lump sum which he had utilised to purchase a motorcycle which had since been stolen and which had been uninsured and to take his father on a trip to (country omitted). When challenged about the wisdom of investing his money in “(omitted)”, Mr Boyd replied that it had been a “a smart decision”, otherwise [he would] “be dead, by now”. The implication being that if he had had access to such a large sum of money prior to now he would have used it on drugs.
I am left with a sense of disquiet about Mr Boyd’s evidence concerning the utilisation of his lump sum payment. On the one hand, my impression of Mr Boyd is that he is not particularly adept in the use of money and is also likely to have a great sense of loyalty to his military friends. On the other hand, it seems extraordinary that he would behave in such a profligate manner in respect of such a large sum of money.
In addition, there seems some level of tension between his assertion that the shares are currently worthless with his vehement opposition to Ms Owen receiving any of them because they are his property as a consequence of his service disability.
In these circumstances, it is obviously not beyond the bounds of possibility that Mr Boyd would be prepared to go to some lengths and adopt a significant level of subterfuge in order to hide his capital from Ms Owen, a person for whom he has no great regard for all sorts of complex and emotional reasons.
Ms C presented as a fragile and vulnerable person. She and Mr Boyd met one another at a mutual friend’s home on (omitted) 2016. Ms C has two children, A aged two and B aged one. She separated from their father in November of 2015 because of his use of the drug Ice. Ms C confirmed that she had been diagnosed with post-natal depression but had not been prescribed any medication for it.
Ms C confirmed that she has both a driver’s licence and a motor vehicle – a Ford (omitted), which she described as a bloody good little car. Ms C considered that the vehicle would be able to accomplish the drive to and from Adelaide without breaking down. Ms C deposed that she has no traffic convictions other than one for speeding.
I mean Ms C no disrespect but in my assessment she is not likely to be a suitable supervisor. In my estimation, she lacks emotional resilience and is unlikely to be able to stand up to Mr Boyd if there is any conflict between either him and Ms Owen or between her and Mr Boyd.
In addition, although I wish Mr Boyd and Ms C every success in their relationship, the fact remains that they have only been involved with one another for a few months. Ms C’s life seems to be one full of pressures. She confirmed that she and her former partner are currently engaged in court proceedings regarding arrangements for the care of A and B.
Mr B attended at court for the trial and was extensively cross-examined by Mr Hemsley. From his perspective, the major issues in the case turned on Mr Boyd’s current drug status and the state of his mental health. In regards to the former, for Mr B, the question was if Mr Boyd is drug free, for how long will he be so.
In respect of the latter issue, in interview with Mr Boyd, Mr B noted signs of PTSD. These signs included hyper-arousal and a level of emotional intrusiveness which Mr B summarised as an in your face attitude. Mr B considered that Mr Boyd needed to take steps to help himself rather than blame others for his current predicament. Although it may be considered harsh I agree with this assessment.
As previously indicated, Mr B was impressed in how competently Mr Boyd managed X. The interactions between the two were described as being child-focussed and neither smothering nor needy. In all these circumstances, Mr B strongly supported X having a significant level of relationship with his father, provided protective concerns regarding the child were satisfied. In this regard, Mr B supported a process of drug counselling for Mr Boyd. In this context, his preference was for Mr Boyd to provide up to twelve months of drug free screening.
Ms Owen’s trial affidavit is a comprehensive document which chronicles a history of problematic behaviour from Mr Boyd towards her. She was born on (omitted) 1985. She enjoys good health. Mr Boyd was born on (omitted) 1984. The parties met in 2001 and began to live together in (omitted) of 2005. Since that time they have separated and then resumed their relationship on many occasions. They have lived together in Melbourne, (omitted), (omitted) and more recently in Brisbane.
Ms Owen has qualifications in (omitted). She began to work for (employer omitted) in (omitted) in 2005 and has worked for the firm apart from a brief period of maternity leave ever since. The impression I have gained from her affidavit is of a person who has matured over time and who maintains a strong work ethic. She does not appear to me to be a petty or vindictive person or one who can be characterised as being unduly sensitive or lacking in resilience.
It is the tenor of Ms Owen’s evidence that Mr Boyd has had drug issues since long before his engagement with the (employer omitted) and was habitually profligate with money throughout the parties’ relationship. In addition, she asserts that Mr Boyd was frequently abusive and violent towards her both before and after he went to (country omitted). I have no doubt that the parties’ relationship can only be described as being a turbulent one.
The parties’ relationship resumed after several separations in early 2009, which coincided with Mr Boyd’s enlistment. This led to the couple moving to Brisbane. In 2010, Mr Boyd was posted to (country omitted). This produced great stresses in the parties’ relationship and, in late 2012, Mr Boyd was diagnosed with PTSD.
In early 2012, Mr Boyd lost his licence for drink driving and then in June of 2012, was apprehended driving whilst disqualified which led to a licence disqualification of two years. He has not provided any details of these offences but in my view they are likely to be emblematic of the fact that his life was not under any great degree of control. He was granted medical leave from the (employer omitted) in September 2012 and was discharged in May of 2013.
Ms Owen returned to work when X was around seven months of age on a part-time basis. Mr Boyd provided care for X, who also attended day care. Mr Boyd had difficulties with his back and with dependence on his prescribed pain medication. It is Ms Owen’s evidence that he was depressed and at times aggressive and abusive towards her. This led to the parties’ separation.
Following their final separation the parties lived in different accommodation in suburban Brisbane. X lived predominantly with Ms Owen and spent regular periods of time with his father. It was a difficult period for all concerned given the very many stressful factors arising. Mr Boyd was adjusting to his very difficult circumstances. Ms Owen was under a significant level of financial pressure.
Ms Owen was concerned by Mr Boyd’s use of OxyContin and his behaviour. It is her evidence that Mr Boyd assaulted her in January of 2014, in X’s presence and was frequently verbally abusive towards her. In these circumstances, it was her view that living in Brisbane was untenable for her and X.
In my view, the evidence indicates that Ms Owen approached the issue of her and X’s relocation to Adelaide in a responsible and open manner with Mr Boyd. There was nothing underhanded in her behaviour. She hoped Mr Boyd would be able to come to Adelaide in tandem with her where he could undergo drug rehabilitation and receive other medical assistance. It was Mr Boyd’s choice to remain in (omitted).
Given the distance between (omitted) and Adelaide, arrangements for X to spend time with his father have been extremely difficult. These difficulties have been exacerbated by Mr Boyd’s erratic behaviour and the fact that he once again lost his driver’s licence for drug driving offences about which he has not been completely frank.
I accept Ms Owen’s evidence that Mr Boyd was frequently verbally abusive towards her at handovers and was at times unreliable in respect of punctuality. More significantly, in January of 2015, Mr Boyd removed X from his childcare without Ms Owen’s permission and in breach of the first court order made in September of 2014.
The difficulties were not assisted by the fact that Mr Boyd failed to attend a child ordered family dispute resolution conference and posted a positive drug screen result test to cannabis in May 2015 and to both cannabis and methamphetamines in October of 2015. In all these circumstances in my view it was not only reasonable but incumbent upon Ms Owen as a responsible parent to insist that Mr Boyd’s time with X be subject to supervision.
The legal principles applicable
(a) Parenting Issues
The legal provisions relating to how a court determines parenting arrangements for a child are both complex and controversial. They are contained in Part VII of the Family Law Act. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. Accordingly, a parenting order can deal with such things as the conditions which should attach to the time a parent spends with a child including whether that time such be subject to supervision.
Since its inception, the Act has been subject to several major changes reflecting community concerns regarding significant societal issues such as family violence and the on-going relationship between parents, particularly fathers and their children following relationship breakdown.
The applicable legal provisions are complex and mandate a pathway, which I must follow in each case. I will do my best to explain the law. However, in summary, the issues arising in this case from each party’s perspective are as follows:
·In Mr Boyd’s view, the most important factors in the case relate to his obvious and loving relationship with X which arises because he is X’s father which is, for obvious reasons, a central familial relationship for X which is important now but will become more important as X’s matures.
·In this context, Mr Boyd contends that the court’s main focus should be on ensuring that X has the most meaningful level of relationship with his father which can be achieved. It is his positon that the requirement for supervision has the potential to retard the level of meaning in his relationship with X.
·Ms Owen concedes that X does have a significant level of relationship with his father. However, in her view, at this stage, given the concerns raised in respect of Mr Boyd’s level of psychological functioning and his propensity to act in violent and unpredictable ways, the court’s focus at this stage should be on protective concerns so far as X’s time with his father is concerned.
·In this context, regrettable and as difficult as it may be in this context, Ms Owen contends that the court has no other viable alternative other than to order that Mr Boyd’s time with X be subject to supervision by some responsible agent. The only ones available at present being the paternal grandparents.
In deciding whether to make any particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[10]
[10] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[11] As such the various factors in section 60CC are inclusive but not exclusive of one another.[12]
[11] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[12] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Part VII of the Act is to be interpreted in the light of a number of objectives and principles which underpin the two primary considerations contained in section 60CC. These objectives and the principles underlying them appear in section 60B(1) & (2) respectively.
The principles speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors regardless of the previous and current relationship status of those individuals. However all these considerations are subject to the overall proviso of the child’s best interests.
Given the importance which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time which a child spends with each of his or her parents. There is no presumption in favour of equal time per se. This is not the starting point for the court’s deliberations.
The presumption contained in section 61DA is subject to rebuttal. As such it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
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 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)].
The fundamental task for the court is to determine bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B what is the best outcome for any child concerned both now and in the future.
Ms Owen approaches the case on the basis that Mr Boyd’s past behaviour, if not subject to some form of oversight, represents a risk to X’s welfare. It is her case that X has been exposed to family violence in the past and this has the potential to cause him both physical and psychological harm. The degree of risk arising is multifaceted relating to Mr Boyd’s psychiatric health, likely reactions to stressful situations and his possible resort to drugs, both prescribed and illicit.
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight in its determination of a child’s best interests to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[13]
[13] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Accordingly, the concept of abuse constitutes the suffering of serious psychological harm as a consequence of both being directly subjected to family violence or being exposed to it.
Family violence is defined by section 4AB(1) of the Family Law Act 1975. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·repeated derogatory taunts;
·intentionally damaging property.
Accordingly, family violence means not only violence which causes a family member to be fearful such as a direct assault to the person but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure which include:
·overhearing threats;
·seeing or hearing an assault;
·stalking;
·comforting or providing assistance to a member of the child’s family following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[14]
[14] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogeneous in its qualities and can arise in a variety of contexts. It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children.
It can range in character from impulsive behaviour that arises as a result of a stressful situation such as a relationship breakdown and is instantly regretted or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[15] Not all incidents of family violence will be necessarily damaging for a child.
[15] See JG & BG (1994) 18 Fam LR 255 at 261
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, 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.[16]
[16] See In The Marriageof Patsalou (1994) 18 Fam LR 426
The Full Court in Deiter & Deiter[17] has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity for the individuals particularly any child who will be potentially affected by it.
[17] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the child concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent who is incapacitated by the consumption of drugs or alcohol; compromised parenting as a result of psychological illness or personality disorder; and, possible risks relating to the exposure of a child to an angry and unpredictable parent.
In M & M, [18] a case which is not factually congruent with the current matter because it dealt with allegations of sexual abuse, the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse.
[18] See M & M (1988) FLC91-979 at page 77,081
In the current case, I must analyse the evidence available to me relating to the various concerns raised by Ms Owen to determine the degree of risk arising for X of spending time with his father. If, after this analysis I consider any such risk to be unacceptably severe, I should not countenance X spending time with his father in such circumstances. The standard of proof applicable to the assessment of risk in this context is the ordinary civil standard.[19]
[19] See B & B (1988) FLC 91- 957 at 76,935
Thereafter, particularly bearing in mind any potential benefits arising for X from spending time with his father, I should consider possible measures to mitigate the risk to bring it within acceptable parameters. However, if the degree of risk remains unacceptable regardless of such measures no order for time should be made. At all stages, X’s best interests remain the decisive issue.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[20]
[20] Slater & Light (supra) at [37]
For obvious reasons, it is preferable that all outstanding issues arising in respect of the parenting of a child be resolved at the final hearing stage. Such a desirable outcome is not easily achievable in a case such as the present one. Regrettably, there are simply too many loose ends in it which chiefly relate to Mr Boyd’s lack of proper engagement in the proceedings to date.
As yet he has not provided any up to date assessment of his psychiatric health. His response to the regime of drug screen testing is patchy to say the least. In addition and more significantly, it seems largely axiomatic that the current regime of supervision by Mr Boyd’s parents cannot go on indefinitely. However, even this issue is far from clear given the absence of evidence from the paternal grandparents. For obvious reasons, it would appear to be far from optimal to require them to travel to and from (omitted) to supervise time on an indefinite basis without at least hearing from them as to their willingness and ability to do so.
As previously indicated, the Full Court has generally eschewed regimes envisaging supervised periods of time between a parent and a child on an indefinite basis. Rather there must exist a cogent reason or reasons to justify such an approach.
In general terms, I accept that this is so. However, in my view, in order for the court to discharge its protective obligations towards X, it needs to do more than simply accept such assurances no matter how heartfelt they appear. In particular, Mr Boyd needs to do more. The onus is on him to provide cogent evidence that he is dealing appropriately with the issues which confront him.
It is hard not to feel sympathy for Mr Boyd. He was gravely injured whilst in the service of his country. His relationship with X is central to his life. However, from the court’s perspective, X’s protection is the more important consideration at this stage.
Ms Owen is not advocating any severance of the relationship between X and his father. Rather, I accept that what she is promoting is what she regards as the minimum level of practical supervision which is likely to be effective in the difficult circumstances of the case. I do not consider that she is advocating the level of supervision which she is with a view to satisfying some ulterior motive on her part to undermine X’s relationship with his father.
Rather, I accept that she continues to hold significant concerns about what she views as Mr Boyd’s unpredictable behaviour of which she has both firsthand and extensive experience. I do not consider that her reaction to this behaviour can be regarded as either extreme or over-reactive. In my view, it is to her credit that she has supported X spending time with his father in what can only be regarded as difficult and challenging circumstances.
Ms Owen trusts the paternal grandparents. It is important that Ms Owen has a sense of confidence in any regime through which X interacts with his father given that her concerns about such time are objectively reasonable. In B & B [44] the Full Court said as follows:
“…it is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[44] B & B (1993) FLC 92-357 at 79,780
In my view, the requirements sought by Ms Owen regarding on-going supervision by the paternal grandparents provides the minimum level of protection for X which is also likely to provide a sufficient level of assurance for Ms Owen that the child will be safe whilst spending time with his father. As X’s undisputed primary carer this is a significant factor. For reasons already provided, Ms C does not have the same level of trust and as such is not an appropriate supervisor.
The additional considerations
a) The child’s views
Given X’s age and the thrust of Mr B’s evidence, this is not a relevant consideration.
b) The nature of the child’s relationship with each of his parents and significant others
X’s most significant relationship is undoubtedly with his mother. She has been his primary carer throughout his life to date. As a consequence of this for the reasons outlined above it is important that Ms Owen have confidence in any arrangements through which X interacts with his father.
X also knows his father well and loves him. In my assessment in large part, this happy state of affairs is due to Ms Owen’s support of the relationship in the very difficult circumstances prevailing since the parties separated.
I reject any assertion that Ms Owen is a vindictive person who is intent on undermining the relationship between X and his father.
It also seems to be the case that X has important relationships with both his maternal and paternal grandparents. It is important that these relationships be sustained and supported. The regime promoted by Ms Owen has this consequence.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
For the last few years Mr Boyd has been an absent parent. As such, the weight of making many decisions in respect of X has fallen on Ms Owen’s shoulders.
Mr Boyd would contend that Ms Owen has actively tried to exclude him from being an active presence in X’s life and has not allowed him any input into decisions such as the choice of child care or other facilities for X. I do not accept that this is the case.
In any event, I accept Ms Owen’s evidence that she finds it extremely difficult to discuss issues with Mr Boyd, about X, without Mr Boyd flying off the handle. During the current proceedings, I myself was witness to Mr Boyd losing his composure on several occasions. In these circumstances I accept that from time to time, Ms Owen had no realistic option other than to make significant decisions regarding X’s care.
However, in my assessment, she is neither an unkind nor a capricious person. Throughout the proceedings she consistently acknowledged the importance of Mr Boyd for X. In these circumstances, I consider it more probable than not that she would respect Mr Boyd’s natural desire to be kept in the loop about all significant issues to do with X.
ca) Provision of financial support for the child
Mr Boyd lives in straitened financial circumstances. He is not likely to return easily or permanently to the paid workforce. As such, his provision of financial support for X, at best, is likely to be both limited and perhaps sporadic. As a consequence, Ms Owen will bear the larger portion of responsibility for providing for X’s needs.
d) The likely effect on the child of any changes in his circumstances
Ms Owen proposes a continuation of the status quo of X spending time with his father. Mr Boyd accepts that the court is likely to consider some form of supervision, although in the longer term, he would wish to extend his time with X and eliminate the need for any supervision.
Accordingly, at this stage, neither party advocates any major change in respect of arrangements for X’s care. As a consequence, the matters which fall for consideration under this criterion are not central to the determination of the case.
e) The practical difficulties and the expense of the child spending time and communicating with each of his parents
This is one of the more significant considerations in the case. It is approximately 450km between Adelaide and (omitted) and takes about five hours to drive. It is a significant distance. I accept that it is extremely burdensome on both Mr Boyd and his father and indeed on X for the journey to have to be undertaken every fortnight.
At this stage, Mr Boyd has a far from unblemished driving record. In my view, for understandable reasons, Ms Owen is apprehensive about Mr Boyd alone being responsible for transporting X between Adelaide, (omitted) and return. In addition, it is my view that it would not be in X’s best interests for the journey aspect of the time between father and child to be unsupervised.
The current state of affairs places many logistical difficulties in the face of X’s “right to maintain personal relations and direct contact with both parents on a regular basis” to utilise the exact phraseology of the section in question. However, this unfortunate state of affairs came about largely as a consequence of Mr Boyd’s actions.
In this context, I accept that initially the parties planned to move to Adelaide in tandem. However, Mr Boyd changed his mind. In these circumstances, it cannot be said that Ms Owen has attempted to engineer a situation which makes it difficult for Mr Boyd to spend time with X.
In addition, in the recent past, Mr Boyd has indicated on several occasions his intention to move to Adelaide to be closer to X. However, he has not followed through on these plans and now with the commencement of his relationship with Ms C, it seems less likely that he will be able to move away from (omitted).
Balancing all these considerations, in my view, the mother’s proposal for time spending represents the most practicable one. In particular, Ms Owen is proposing reasonably lengthy periods of time during each school holiday period to augment weekend time during school terms.
In my view, this regime although not the optimal outcome, will ensure that X’s relationship with his father remains meaningful. In my view, it is very significant that Mr B considered that X had such a close and loving relationship with his father, notwithstanding the logistical issues arising between (omitted) and Adelaide.
f) The capacity of the parents to provide for the child’s emotional and educational needs
In my view, the evidence indicates that Ms Owen is a capable parent who is well placed to provide for X’s emotional and educational needs. The evidence indicates that Ms Owen’s household is a happy one in which all X’s needs are amply supplied.
Mr B was impressed with the rapport between X and his father. I also accept that Mr Boyd is emotionally attuned to X. It also seems to be the case that Mr Boyd has no significant criticisms of the level of care provided for X by Ms Owen, other than in regards to the level of his involvement in that care which she currently promotes.
g) The child’s maturity, sex, lifestyle and background
Other than the fact that X is a child of tender years who is necessarily vulnerable and requiring the protection of adults to ensure he is safe and his needs are attended to, this is not a relevant consideration.
h) Aboriginality
This is not a relevant consideration in the case.
i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parties
I accept that both parties wish to be the best possible parents for X. Up to this point, Ms Owen has provided significantly more of the parenting for X. In my view, she has demonstrated to be an exemplary parent. In particular, in difficult circumstances she has supported the relationship between X and his father.
Mr Boyd’s parenting has been compromised to a large extent by the significant personal difficulties in his life. However, notwithstanding these difficulties, he has remained committed to his relationship with X. In particular, he has travelled regularly to Adelaide to spend time with his son. In my view, in this regard he has much to thank his father for.
j) Family violence
k) Any family violence order
I am satisfied that, in the past, X has been exposed to family violence. This violence has arisen when Mr Boyd has behaved inappropriately towards Ms Owen, whilst X has been present. Both Ms Owen and X are entitled to be protected from this kind of behaviour in future.
At this stage, I have significant concerns that Ms Owen is not likely able to manage her parenting relationship with Mr Boyd particularly at handover without the involvement of others. At this stage, I am concerned that Mr Boyd may not be able to restrain his emotional reaction to Ms Owen, particularly on any occasion when X has to be exchanged between them.
In my view, these serious considerations mandate a further continuation of supervision at least until such time as Mr Boyd has demonstrated, in objective and independent terms, an ability to manage his emotional reaction to stressful situations. This also goes to the heart of why orders for supervised time should continue.
Ms Owen has been granted a family violence order in her favour following the incident of November 2015. Notwithstanding this order, Ms Owen has ensured that X continues to spend regular periods of time with his father.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The proceedings between the parties have been on foot since August of 2014. The delay is largely attributable to Mr Boyd’s failure to comply with court processes. He did not file any useful evidence prior to final hearing of the matter.
There have been two family reports in the matter. In each of the reports, Mr B focussed on issues to do with Mr Boyd’s psychiatric condition and his concerns regarding Mr Boyd’s drug usage. Notwithstanding these reports, Mr Boyd has failed to provide evidence for the court and Ms Owen regarding his psychiatric issues.
In my view, the proceedings need to be finalised. It is not likely to be helpful to X that they be adjourned further, in order that Mr Boyd file evidence regarding his current regime of psychiatric treatment and in respect to his willingness, if at all, to attend specific counselling to deal with his PSTD. In my view, Mr Boyd has been given ample time to deal with these central aspects to his case.
In my assessment, Ms Owen is not unsympathetic to Mr Boyd’s situation. She wishes him well and in particular hopes that he will get the help which he both needs and is his entitlement as a returned veteran. However, it is in neither her power nor that of the court to compel Mr Boyd to seek any treatment or counselling. That responsibility lies with Mr Boyd himself.
Parental responsibility
I am satisfied that the presumption of equal shared parental responsibility created by section 61DA, is rebutted in this case. I am satisfied that there are reasonable grounds for me to believe that there are significant family violence issues arising in the case. More importantly, given the obvious tensions and communication difficulties between Mr Boyd on the one hand and Ms Owen on the other, in my view it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
The question remaining for the court is how significant decisions regarding major long term issues pertaining to X should be made. It is Ms Owen’s position that she finds it difficult to communicate effectively with Mr Boyd and, as such, it is simply impossible for the parties to make any significant decision regarding X without falling into vitriolic recriminations with one another.
On the other hand, Mr Boyd bridles at any suggestion that he should be excluded from having a significant level of in-put into important decisions pertaining to X, particularly in terms of his education and health. As previously indicated, major long term issues in respect of a child include matters relating to the child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements which would make it significantly more difficult for the child concerned to spend time with a parent.
I acknowledge that Mr Boyd is deeply interested in every aspect of X’s care, welfare and development. This interest stems from his love for X and his aspiration that the child have a happy and safe childhood, which will ensure that he becomes a fulfilled and capable adult. I also accept that these are aspirations which he shares with Ms Owen.
However, at this juncture, I hold grave concerns that the parties are able to exercise significant aspects of parental authority consensually. In my assessment, the parties do not communicate in any meaningful or effective way. For the reasons already provided, I remain concerned that any future interactions between the parties at least until such time as Mr Boyd has come to terms with his psychiatric issues, has the potential to end in conflict between the parties.
In my view, such conflict is antithetical to the ethos of the applicable legislation, which emphasises joint parental endeavour leading to the advancement of any child concerned. In Bartel & Schmucker (No.3)[45] Cronin J said as follows of the concept of parental responsibility:
“… is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.”
[45] Bartel & Schmucker (No3) [2012] FamCA 1094 at [13]
As I have already indicated, I do not assess Ms Owen to be a capricious or high-handed person. Certainly, I do not think that she is motivated in the stance which she has adopted in these proceedings by any wish to exclude Mr Boyd from X’s life. Rather, I accept that she has adopted her position because of her perception that it is unworkable for the parties to share parental responsibility.
As a consequence of this assessment, I accept that Ms Owen is likely to have sufficient courtesy and respect for Mr Boyd to inform him of all significant major issues to do with X, as they arise from time to time, so that he can provide her with some input about them.
However, I also accept her evidence that she perceives it as being essential that she have the final say about these issues because otherwise the parties will become ensnared in conflict which will either prevent or unduly delay these essential decisions being made at the stage when they need to be made.
As I have already indicated, I assess Ms Owen to be a capable and well-motivated parent. As such, I am satisfied that she has the necessary attributes to make appropriate decisions, in respect of X. I do not necessarily consider that Mr Boyd, although well intentioned, shares the same level of judgement.
Conclusions
This is a difficult and perplexing case. This degree of difficulty has not been assisted by the lack of useful involvement of Mr Boyd in the process. He has provided limited formal evidence, particularly in regards to his psychiatric condition and the issues related to it, particularly in respect of any treatment required for substance abuse.
The applicable legislation prioritises protective issues for children in proceedings before the court. I remain concerned that issues pertaining to X’s safety whilst in his father’s care remain unaddressed by Mr Boyd. As I have indicated, Mr Boyd’s presentation in court caused me considerable concern. He seemed to me to be at times stressed and reactive. Mr B, the court appointed expert was struck by the same aspects of Mr Boyd’s presentation which seemed to him to be consistent with a diagnosis of PTSD.
I am satisfied that these issues do present a degree of risk for X which it would be unacceptable for the court to countenance at this stage by removing all forms of supervision. In my view, it would pose an unacceptable risk for X if all forms of supervision are removed. The onus is on Mr Boyd to provide evidence that his issues are being addressed. He has not done so in any considered or adequate way. Accordingly, supervision must remain in place.
Mr Boyd is undoubtedly devoted to X and relates well to him, when the two are together. In addition, it is impossible not to feel sympathetic for Mr Boyd, who was injured whilst in the service of his country. However, these sympathies and the undoubted importance and strength of X’s relationship with his father should not be permitted to overshadow the court’s ultimate responsibility to consider the child’s safety.
In my view, it is a testament to Ms Owen’s focus on X and her general forbearance that he maintains such a strong relationship with his father, given the difficulty of the situation prevailing. A less conciliatory parent would have had little compunction in suspending time arrangements.
As such, Ms Owen cannot be characterised as a vindictive person, who is unsupportive of the benefits likely to accrue to X, in both the short and longer term of having a close relationship with his father. Rather, she has demonstrated a very significant degree of commitment to ensuring that X does continue to spend time with his father, notwithstanding the level of volatility in Mr Boyd’s life, from time to time, to which she has also been regularly exposed.
In my view, Ms Owen has proposed a regime which will maintain a strong relationship between father and child whilst at the same time ensuring the child’s safety. In the circumstances prevailing, I do not consider that it would be in X’s best interests to remove some form of oversight from the time which occurs between him and his father.
In my view, Mr Boyd has proposed no realistic alternative to the current level of supervision offered by his parents. Ms C is not equipped to perform this role. The only option, notwithstanding the very significant logistical issues, is the paternal grandparents.
For all these reasons, I have come to the conclusion that the orders proposed by the mother are the ones likely to be best calculated to serve X’s interests at this stage of his development.
I acknowledge that there are very grave difficulties in maintaining this regime on an indefinite basis. However, given Mr Boyd’s difficulties in filing material on time, if at all, and attending court scheduled events, I can see no point in adjourning the proceedings in order to allow Mr Boyd to gather the evidence required to advance his case further particularly in regards to issues relating to his psychiatric health. Ms Owen is entitled to have the proceedings brought to a close.
However, in the form of the notations proposed by Ms Owen, both Mr Boyd and the court are provided with a potential road map as to how the orders can be re-figured in the future, if and when, Mr Boyd has attended to the various matters which raise protective concerns so far as X is concerned. Otherwise, I am satisfied that it is in X’s best interests for these proceedings to be finalised as proposed by the mother.
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 three hundred and sixteen (316) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 21 December 2016
[38] Watson & Ling [2013] FamCA 57 at [13]
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Negligence & Tort
Legal Concepts
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Injunction
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Remedies
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