Bruno and Bruno
[2009] FMCAfam 108
•17 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRUNO & BRUNO | [2009] FMCAfam 108 |
| FAMILY LAW – Competing application for parenting orders – agreed equal shared parental responsibility – time the children should spend with their father – legal principles to be applied. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA & 65DAA |
| Applicant: | MS BRUNO |
| Respondent: | MR BRUNO |
| File Number: | ADC 428 of 2008 |
| Judgment of: | Cole FM |
| Hearing dates: | 16 December 2008, 16 & 22 January 2009 |
| Date of Last Submission: | 22 January 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 17 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. McQuade |
| Solicitors for the Applicant: | Ann Josephson |
| Counsel for the Respondent: | Mr J. Bowler |
| Solicitors for the Respondent: | Mellor Olsson |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
The mother and father have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2002.
The parties complete as soon as practicable the ‘Kids Are First’ post- separation parenting program Anglicare.
The parties forthwith undertake co-parenting mediation, such mediation process to commence on the first available date.
The parties utilise a communication book to exchange information relating to the welfare of the said children.
THE COURT FURTHER ORDERS THAT:
The said children live with the mother.
The said children spend time with the father as follows:
(a)during school term time, on each alternate week from the conclusion of school Thursday until the commencement of school Monday commencing on the second Thursday following the date of these orders;
(b)for one half of each short term school holiday period;
(c)for one half of the Christmas school holiday period on a week- about basis as agreed between the parties or, in default of agreement, for the first half of such holiday period;
(d)from 5pm on 25 December until 5pm on 26 December in the year 2009 and in each alternate year thereafter; and
(e)from 5pm on 24 December until 5pm on 25 December in the year 2010 and in each alternate year thereafter.
All handovers that cannot take place at the said children’s school do take place inside the [W] Police Station.
The parties be restrained and an injunction hereby granted restraining each of them from denigrating the other to, or in the presence of, the said children or permitting any other person to do so.
The applications of the parties be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bruno & Bruno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 428 of 2008
| MS BRUNO |
Applicant
And
| MR BRUNO |
Respondent
REASONS FOR JUDGMENT
These proceedings concern two children, namely [X] born [in] 2001 (“[X]”) and [Y] born [in] 2002 (“[Y]”).
The children’s parents cannot agree on their living arrangements and seek parenting orders.
The Parties’ Proposals
The proceedings were commenced by the mother, Ms Bruno, who sought orders that the children live with her and spend time with the father on alternate weekends and half of the school holidays. At trial, on the second day, she confirmed she would consent to orders that the children spend four nights out of every fourteen with their father.
The father, Mr Bruno, filed a response seeking the children live with him and spend such time with the mother as was agreed. This was subsequently amended at trial such that the children live with him for seven out of fourteen days and half of the school holidays, with the remaining time to be spent with their mother.
Consent Orders
The parties to their credit did agree that there be orders by consent in terms of paragraphs 1 to 4 of the orders I propose to make (as set out at the commencement of these Reasons). It is their capacity to facilitate a meaningful relationship between their children and the other parent which overshadows these proceedings and is the subject of further discussion in these Reasons. Whilst I have some concerns that the level of conflict between the parties may well reduce the effectiveness of paragraphs 2 and 3 of the orders, I consider that it is in the best interests of the children to proceed with this agreement and would urge the parties to use this chance to reduce the conflict and improve their relationship as the parents of these young boys.
The Law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in
sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii) the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The parties have agreed that there be an order that they have equal shared parental responsibility for the children. I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending that time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.
Background
The respondent father was born in Romania [in] 1957 and is aged fifty-two this year. He migrated to Australia in 1983. He has a relatively good command of English.
The applicant mother was born [in] 1967 and is aged forty-two this year. She has a poor command of English, as was noted in the Family Report, and was reliant on an interpreter throughout the course of these proceedings.
The mother has a child from a previous relationship, namely [Z], who was born [in] 1996. [Z] resides with the mother and is not the subject of any orders sought in this case.
The parties met and married in Romania [in] 1996, with the father returning to Australia in due course thereafter. The mother came to Australia in 2000 with [Z].
The parties’ two sons were subsequently born in Australia and the parties resided here in South Australia. The father worked and is now employed as a [trade omitted], with the mother being responsible for home duties and the care of the children.
On arrival in Australia [Z] was assessed with a mild intellectual disability and was enrolled subsequently in a special needs school.
The evidence of the parties, each in their own way, confirms that the marriage was not a happy one.
The mother’s evidence is that the father was verbally and emotionally abusive. She also alleges an incident of physical violence to her and states that the father was violent to the children.
The father’s evidence is that the mother immediately exhibited drinking and gambling problems, amongst other things, and was physically violent with the children.
I will refer to these matters insofar as they impact on my judgment later in these Reasons.
Both parties in their documents, in their discussions with Ms Warhaft (the Family Report writer) and the evidence they gave to the court had difficulty saying anything positive about the other.
The parties separated on 28 December 2007. The circumstances of separation are set out in the parties’ affidavits and what is clear is that the mother did not get to see the children until 26 February 2008.
It is the mother’s evidence that she attempted to ring and arrange to see the children on more than one occasion. It is the father’s evidence that the only call he received was from [Z]. He confirmed that he told [Z] that he had nothing to say to the mother. In the witness box he confirmed his prior evidence (in an affidavit) that the children did not ask to see their mother and went on to say that she had a key, implying it was up to her to make the move. He concedes he took no steps to facilitate the children seeing their mother.
It is the father’s evidence that post separation he placed the children in child care at the [P] Centre whilst he was at work. When the children went back to school he was usually able to collect them from school but if unable to collect them he would arrange for his friend Mr D to pick them up. His normal work hours were apparently from 7.30am to 4pm. Mr D arrived at his residence at 6.30am and would look after the children until it was time for him to take them to school. The evidence was that Mr D would assist in this way as much as three to four times each week. Clearly Mr D was of significant assistance and had a significant role to play with the children at this time.
Post separation, save for a period when he did not work due, he says, to the stress of the separation, the father remained employed as a [trade omitted]. The mother continued with her home duties and relying on, amongst other things, the assistance of a migrant support worker and Ms N, a psychologist whose two reports were admitted into evidence by consent. I will refer to these later.
On 4 February 2008 the mother commenced proceedings seeking interim and final orders which were referred to earlier in these Reasons. On 20 February 2008 the father filed his response, which again was referred to earlier.
Orders were made on 26 February 2008 requiring the delivery up of the children and allowing for the children to live with the mother and spend regular time with their father.
The children have since been living with their mother and spending time with their father.
At first it appears there were some difficulties with the handovers for the children. Arrangements were then varied on the initiative of the mother’s solicitors and the handovers were subsequently changed to occur inside the [W] Police Station. All handovers have since occurred at the Police Station and it appears that, apart from some initial issues, neither party has had any difficulties that have required the court’s attention.
In June 2008 a Family Report was provided by Ms Anna Warhaft.
I will refer to this later but at this stage note that Ms Warhaft’s recommendations were as follows:
a)providing the risks allegedly posed by Ms Bruno are unsubstantiated, that [X] and [Y] remain in the care of their mother and spend substantial and significant time with their father;
b)that both parents attend parenting after separation counselling’ and
c)that undertakings be given by each parent not to denigrate the other parent.
The matter was to proceed to trial in August and then in October 2008. The hearing eventually commenced on 16 December 2008. At the commencement of the trial the father, through his counsel, advised the court that his client now sought equal time with the children, being alternate weeks and half of the school holidays. The trial continued on a further day’s hearing on 16 January 2009, with closing submissions being made on 22 January 2009.
It is agreed that there be an order that the parents have equal shared parental responsibility for the children. I must consider then whether they should spend “equal time” or “substantial and significant time” with their parents. I will do that after an examination of the provisions of s.60CC and its application to the evidence.
The Evidence
The mother relies on her affidavits filed on 16 September 2008 and 14 October 2008, the reports of Ms N and the school reports for the children. The mother gave evidence; the reports of Ms N were admitted and she was not called. The father relies on his trial affidavit filed on 26 September 2008 and the affidavit of Mr D (“Mr D”) filed on 26 September 2008. Both the father and Mr D gave evidence.
Children’s Best Interests - Section 60CC(2)
I will now turn to a consideration of the primary factors set out in s.60CC of the Act in determining the best interests of the children.
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
This issue of the children having a meaningful relationship with both of their parents may have been a matter of concern when considering the father’s original application to have the children live with him and his statements to Ms Warhaft, which suggested there was no benefit to the children having a relationship with their mother until she got herself ‘sorted out’. It is no longer an issue subsequent to the father’s decision to change his application to one seeking equal time.
It is unfortunate that neither party was able in their documents, their discussions with the report writer or in the evidence they gave to this court to be able to be say anything positive about the other. This must impact on the meaningful relationship that the children have with each of their parents.
The mother’s reaction of surprise at being asked why she did not consult with the father prior to seeing Ms N this year spoke greater volumes than her response of: “I have nothing to say to him”.
The father’s response when asked what he had to say that was positive about the mother was equally illustrative of this lack of insight of the parties of the need to maintain a positive relationship for the sake of the children being along the lines of: “the only thing is she gave birth to the two kids”.
In spite of this, both parents both clearly love the children and conceded that the other has a role to play. The issue is what that role should be.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Mother
It is the mother’s case that her time in Australia has not been happy. She alleged that the father had been verbally and emotionally abusive towards her, calling her “stupid”, “whore” and “bitch”, amongst other things. Save that the father admits calling her “stupid”, this is denied by him.
The mother also alleges that in 2003 there was an incident when the father was violent towards her. This is denied by the father, who says he only touched her ponytail. Ms N, in one of her reports, mentions the mother presenting with black eyes at this time. This was put to the father in cross-examination. It was not possible to make a finding on the evidence before me, save to say that it is clear the parties’ relationship was highly conflicted.
The Children
In addition, the mother states that the father was in the habit of yelling at the children, hitting all of them with his belt held in his hand. The father denies hitting the children, although he admits to thumping the furniture loudly in an attempt to pull them into line. He went on to say that this as a rule did not work.
The father submits, through his counsel, that this primary consideration, namely the need to protect the children, should weigh significantly on the court. Reference is made to, amongst other things, the mother’s admissions that:
a)she hit [X] with a mop leaving a small mark (after she says he called her a “whore”);
b)she hit [X] on the bottom with a rolling pin (she said it was a tap on the bottom);
c)Mr B bit the boys on the bottom while playing (she says she told him it was inappropriate and not to do it again) - there is no allegation that it was repeated;
d)her consumption of beer from 9am in the morning, being six or so stubbies through the day - although the father’s counsel concedes quite rightly that the frequency of this consumption is somewhat open to dispute and makes the point instead that she had no sense of the inappropriateness of this behaviour;
e)leaving Mr B’s place late at night (at 10.30pm) to take the children home, when they had school the next day; and
f)he also refers to her concession that she was in a relationship with Mr B, having denied it, and she was not at the date of swearing her affidavit in a house despite having said so.
It is the father’s submission that if the mother did not tell the truth about these things then it is open to the court to find that she did not tell the truth when she denied the remaining allegations in the Family Report and in particular in paragraph 51 of that report. There are, however, a number of factors that operate against this submission. They are:
a)when the father makes these allegations about the children in respect to the time post-separation, he seems to be reporting what the children have told him;
b)the father’s influence on the children is significant and is commented on in the Family Report;
c)there is no corroborative evidence to support the allegations save for the admissions made by the mother on those particular incidents;
d)some of those matters regarding the children’s “discipline” were dealt with in the reports of Ms N - those reports were produced by the mother and the father did not seek to cross examine Ms N;
e)the mother did not get it right in her affidavit - she conceded in cross-examination that what she told Ms N was correct and chose to produce the reports of Ms N which makes it difficult to find that the mother was hiding this information; and
f)the father had the option of issuing subpoenas or seeking the appointment of an independent children’s lawyer to make the appropriate enquiries - he chose not to exercise either option.
Counsel for the father also refers to [X] having difficulties with learning and suggests that this is open to interpretation as an indicator of abuse. The difficulty with this submission, however, is that it does not exclude other indicators, such as learning or language difficulties, which seem to be supported by the recent decision of the school to involve specialist help for [X].
The mother admits that she has from time to time, when funds permitted, drunk beer with Mr B starting early in the morning. The father’s counsel conceded that the evidence was not clear as to how often this occurred. The point he makes is that the mother could see nothing wrong with it.
Having said that, however, the father failed to produce independent evidence to suggest that:
a)this occurred frequently;
b)it impacted on the mother’s parenting skills; or
c)the mother presented to any of the people who gave her help and support as intoxicated.
Furthermore, there is no dispute that the mother has made use of external assistance from, amongst other sources:
a)the school;
b)the migrant support worker who visits without notice on a regular basis; and
c)Ms N,
and yet there is nothing from these people to corroborate his concerns.
In addition, I am mindful that the father proposes that even if I accept his submissions, the mother continue to care for the children seven out of fourteen days. He cannot say why he has changed from no contact to equal time and his position is inconsistent with a submission that the children may come to harm.
These children’s issues are canvassed in the report prepared by
Ms Warhaft and, in particular, at paragraphs 50 and 51 of the report. It is notable, however, that in response to a question as to why they thought they were there the children launched into a long list of reasons as to why they wished to live with their father. The list covered all the things they believed their father could buy for them and all the failings of their mother and her partner.
I also note Ms Warhaft’s evidence that when she met with the father and the children they were initially speaking in another language and then subsequently, when told to desist from this, the father then urged the children to tell Ms Warhaft the truth about their mother. I have considerable concern that the children were influenced by their father, either directly or indirectly, in that the children were telling him (and Ms Warhaft) what they thought he wanted to hear. I find their disclosures to be evidence of the conflictual relationship between the parents rather than of the events about which they complained.
It is also of significance that the information obtained from the school and the family support worker by Ms Warhaft, referred to in paragraph 60 of her report, not only did not support the allegations made by the father regarding the mother but cast a positive light on the mothers’ parenting activities.
That is not to say that the mother’s conduct (as admitted to by her) is right or acceptable. There is no evidence however, to suggest it occurred more than once and there is evidence that the mother has taken steps to improve her parenting skills. There is also strong evidence to suggest the disclosures made by the children have been heavily influenced by the father. It is not, therefore, enough to sway my judgment in this matter.
I now turn to the secondary considerations.
Section 60CC(3)
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are of such an age (seven and six) that their views should have minimal, if any weight, in the consideration of this matter. My decision to accord those views minimal weight is supported by the evidence of Ms Warhaft. It is also supported by the father’s own evidence in that it is clear to me that they have been influenced by the father’s conduct in this matter.
The father’s evidence “that I give them what they want” corroborates the report of Ms Warhaft that the father is always buying the children presents.
The father in his evidence when asked whether or not he was buying their affection said: “What’s wrong with that? From the heart, I give them what they want”. He did at one point during his cross-examination concede that when he was not buying things for them the children’s personalities changed. I therefore do not propose to give this factor any further consideration.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The relationship of the children with their parents is affected by the high level of animosity between the parties. Nevertheless, they appear to be coping in spite of their parents’ abdication of their parental responsibility.
There was very little evidence, if any, about the extended family of the children. The children do, however, have a half-sister, being the child [Z] from the mother’s first marriage, and there is no dispute that they have a good relationship with her. [Z] resides with her mother.
It is regrettable that no evidence was brought from the mother’s “friend” Mr B. It is a matter of dispute as to whether or not the children have a good relationship with him. It is not possible to make any finding on the evidence before me. The mother concedes she is in a relationship with Mr B. Her description of him as a “friend” and her reasons for doing so were not good (such as, “in Romania we call people we sleep with friends”). I accept that they are not living together but the mother’s decision not to call him did not assist the court.
The only other person of interest is the family friend relied on by the father when the children were in his care namely, Mr D. There is no suggestion that the children do not get on with Mr D. I do, however, have concerns about Mr D’s attitude with respect to the children’s mother, which I will refer to later.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Ms Warhaft comments at paragraph 58 of her report that:
... the bitterness evident between Mr Bruno and Ms Bruno and the incapacity of each of the parents to hide this, is at the extreme end of this scale of those observed over many years of practice by this family consultant.
She stated at paragraph 44 that:
Given the strength of Mr Bruno’s views and the history of this matter, Mr Bruno could not be expected to foster an ongoing relationship between the children and their mother should they be placed in his care.
At paragraph 63 she further stated:
Should [X] and [Y] be placed in their father’s care, it is clear that Mr Bruno will find it difficult, if not impossible, to foster their relationship with their mother on any level, let alone enable them to spend significant and substantial time with her. His negativity towards Ms Bruno is overwhelming….
The evidence provided by the father would support this conclusion.
He was unable to say in any way why he had changed his mind from the opinion provided to Ms Warhaft that the children should live with him and see the mother once she has sorted herself out. To change from that position to a position where shared care is sought would require a significant change of attitude and yet he could not explain this to the court.
Mr D
Counsel for the mother sought on the second day of trial to strike out paragraph 9 of the affidavit of Mr D. This application was opposed by the father on the basis that it went to the credibility of the mother. I dismissed the application advising counsel that I would give the evidence such weight as I thought appropriate in these Reasons. As far as the evidence goes to the character or credibility of the mother I find it to be of little consequence. In so far as it reflects on the father’s attitude to the mother, I found it to have some importance.
The father’s decision to call Mr D was of significance. He said that he wanted the court to know what sort of woman the children’s mother was. When questioned about the contents of the affidavit sworn by
Mr D the father then gave the extremely surprising answer that he had not sighted the affidavit until that day in court. I do not accept this.
The father suggested that the evidence, and in particular paragraph 9 in Mr D’s affidavit, was the first time he had heard of these allegations. I have difficulty accepting this. Mr D is a man, who on the father’s proposal, would have a significant interaction with the father and the children. On his evidence he sees the father three to four times per week. He had no hesitation in referring to the mother as a whore, his words being “that’s what she is”. Furthermore, he went on to say: “[Mr Bruno] and I sometimes talked about this”.
He hastened to add that “the children were not around when I talked about that”. Even if that were true, I have difficulty in believing that the strength of his feelings did not leak in some way into the children’s perception of their mother.
This does not account for, in addition, the attitude Mr D had to Mr B referring to him as the “mother’s boyfriend, bastard, alcoholic, dole bludger” at some volume in the courtroom. Mr D’s presence in the father’s house is not something that will facilitate an ongoing relationship between the children and their mother.
This is not to say that the mother escapes scrutiny. I have referred to her surprise when being asked why she did not consult the father prior to taking the children to Ms N again. Her reaction suggested that the question was incomprehensible. She is therefore rightly the subject of some criticism by the report writer.
Her incapacity to hide her feelings and bitterness towards the father is in some way, as it is with the father, an abdication of the responsibility of parents who have separated who are sharing time with their children. It is not the children’s fault that the parties have chosen to separate and nor is it the children’s fault that their parents do not get on. It is their job to put those matters aside and to recognise that the children need each of them and will need a relationship with each parent for the rest of their lives.
There are some glimmers of hope with this matter but at this stage they can only be described as that. I refer in particular to the fact that the arrangements for the children appear to have worked since April without major incident. (I do acknowledge that the handover and delivery of the children is being undertaken at the [W] Police Station.) I also refer to the parties’ agreement that there should be orders for equal shared parental responsibility and the orders for parenting programs, mediation and a communication book - and I note that they were able to negotiate the time the children were to spend with the father over Christmas, with the mother conceding Christmas Day (an issue that this court frequently has to decide on).
Taking this all into account my thoughts concur with those of the report writer that it is more likely by a narrow margin that the mother rather than the father will be able to facilitate a continuing relationship between the children and the other parent.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living
Neither party has made mention of any extended family support residing at close hand.
The mother, however, has a child from a previous relationship, namely [Z], and there appears to be no dispute that [Z] has a good relationship with the children the subject of these proceedings. That relationship should be maintained.
I note that Ms Warhaft has expressed the hope that, in due course, arrangements could be made for [Z] to spend time with the respondent father in accordance with her wishes. In the meantime, however, it would seem appropriate to structure any arrangements such that the children and [Z] can continue their relationship.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties have since February 2008 managed to comply with the court orders, which has enabled the respondent father to spend time with the children on each weekend. On either party’s proposal it would appear that the practical difficulties and expense is not a matter for consideration in the circumstances at hand.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child including emotional and intellectual needs
There is no dispute that the mother has been responsible (save for the time that the children has spent with the father) for taking the children to and from school and interacting with their teachers.
The mother’s solicitor, at the mother’s request, filed a further affidavit in the adjournment period annexing the mid-year and end-of-year reports for the children. The mid-year report shows that [Y] had ten days absent with twenty-three days late. His end-of-year report shows that he had twenty-seven days absent with thirty-six days late.
The mid-year report for [X] shows that he had ten days absent and sixteen days late. The end-of-year report shows that he had twenty-six and a half days absent with thirty-one days late.
There is no explanation as to when a day counts as absent and when a day counts as late. This would have assisted, particularly in view of the report of Ms Warhaft which noted at paragraph 37:
Mr Bruno indicated that in Ms Bruno’s care the children did not attend school regularly or on time. He alleges that the children’s clothes smell and they are always hungry. These concerns, however, contradict the information provided by the school and the migrant support worker.
She states previously in the report at paragraph 32 that:
Both the school principal, Ms A, and the family support worker, Ms B, indicated that Ms Bruno presented consistently as focused on the children’s needs. Neither of these individuals had ever observed Ms Bruno to have been under the influence of alcohol when communicating with them. Ms A indicated there were no protective concerns regarding [X] and [Y] at all. She noted that they attended school regularly and on time, with entirely adequate food and clothing. Ms B indicated that on all visits to the home (including ones without notice), the evidence supported the view that Ms Bruno was a committed home maker and care giver.
There would therefore seem to be a contradiction between the reports obtained from the enquiries made by Ms Warhaft and the information set out in the school reports. It is noted that there is no comment on the absence or lateness of the children in the reports provided. This is not to say the fact that the twenty-seven days absent and the thirty-two or thirty-six days late are not a matter for concern. Against this however must be weighed the fact that on the evidence before me it appears that the mother has made all of the contact with the children’s school and it is the mother that has the liaison with the children’s teachers and the children’s school administration. In addition, it is the mother that is attending meetings to discuss the concerns regarding [X]’s learning difficulties.
There is evidence before me of the mother’s attempt to cater for the intellectual and emotional needs of the children. I also have the comment of Ms Warhaft at paragraph 60 of her report that:
It is of considerable importance however, that information obtained from the school and the family support worker not only did not support the allegations made by Mr Bruno regarding Ms Bruno, but cast a positive light on Ms Bruno’s parenting capacities.
I do not have any evidence about the father’s interaction with the school. I do note the father’s assertions, which I believe, that he loves his children and would do anything for them. This has to extend, however, to the day to day chores that are a necessary part of parenting. It is the mother who has had the time to do this and continues to have that time. The father who is working and proposes to continue to work will not have that flexibility and will have greater difficulty meeting those commitments even with the indulgence of his employer (from whom no evidence was received).
I will therefore find on the evidence before me that it is the mother who is best equipped on past experience and current commitments to provide for the children’s needs.
g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
To paraphrase the mother, [Y] is a good learner. To also note the report of Ms Warhaft, he appears to be progressing satisfactorily. [X], however, is another issue. [X] it appears has learning difficulties. I note these are being addressed by the school in co-operation with the mother.
It is clear that both of these children would greatly benefit from a reduction of the conflict and a focus on proper parenting skills by both parties.
h) If the child is an Aboriginal child or a Torres Strait Island child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
These matters are not relevant in this case.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is for the parents to set the example or be the role model of how they would like their children to be. Both parents have neglected this responsibility in indulging themselves in an excessive display of bitterness arising from the separation.
School Attendance
The father has expressed concerns over the school attendance of the children and a total of twenty-six and a half or twenty-seven days absent in the school year cannot be seen to be something that is in the children’s best interests. On the other hand, he has not sought to involve himself in the children’s education and there is no evidence that he sought to do so prior to the separation of the parties.
Either party could have provided more information, particularly in view of the assurances made to Ms Warhaft by the school referred to in paragraph 87 of these Reasons. I am mindful, however, that it is the mother who has been accompanying the children to school either on the bus or more recently walking. I am also mindful that this is a task the father delegated due to his work commitments, more often than not while the children were with him. It is not possible to make a finding on the evidence before me, save to say that the mother’s continued involvement with the school, subject to her language difficulties, is noted, in her favour.
Child Support
The father has elected not to pay child support since September 2008. There is some confusion over the child support assessment, with the father’s evidence being that the assessment is $1,260.00 although it is not clear over what period this is taken, whilst the evidence provided through the mother’s solicitor, by consent, was there is in place an assessment of $38.97 per fortnight.
The father concedes his income averages $700.00 per week.
An assessment of $38.97 per fortnight, or $19.49 per week, is well below the appropriate level.
In spite of this, his evidence is that he elected to stop paying because if he paid it would not go on the kids. In his words: “Why am I working for the boyfriend?”. His further evidence was he appreciated that it created some hardship in the mother’s household. He acknowledged that he had to support the mother and the children but wanted to know where the money was going. He wanted receipts. He went on to state that: “If I pay more, the kids will not benefit”. (He was talking about a sum of less than $20.00 per week.)
This does not assist the father’s application to share equally in the care of the children; especially, when it is combined with his evidence that: “From my heart, I give them what I want”. In this matter alone the father has failed to properly consider the responsibilities of parenthood. It is noted that the arrears were paid on 19 January 2009 after this matter had been the subject of discussion in this court. That does not absolve the father from his decision to stop payments of such a small sum, which reflects badly on him.
The mother’s gambling and drinking
The mother concedes that she has had in the past a problem with gambling and drinking. She says those problems have been resolved with the assistance of people such as Ms N. She has been forthright in producing Ms N’s reports which detail her efforts. I note the cross-examination of the mother in respect of the series of withdrawals from the [C] Hotel in late 2007 and her responses. I have addressed the mother’s drinking elsewhere in these Reasons. If they were problems of the magnitude suggested by the father then I have difficulty accepting that they would not have been noticed by an external agency such as the school. There is no evidence to suggest they were. They therefore appear to be issues which are being managed, which demonstrates an ability in the mother to recognise a problem and to try and fix it.
j) Any family violence involving the child or a member of the child’s family
The definition of family violence is contained in s.4(1) of the Act.
It says:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Both parties allege violence on the part of the other. The father denies the mother’s allegations. The mother, as previously set out, admits some of the allegations made by the father, such as the hitting of the children with the mop and the “tapping” (mother’s words) of the children on the bottom with the rolling pin. Whilst these are matters for concern, there is nothing to suggest they occurred more than once or are of such a nature that would pose an unacceptable risk to the children.
The Mother
The mother, through the assistance sought by her, is in regular contact with independent agencies, such as Ms N, the migrant support worker and the children’s school. There is no evidence from these agencies to suggest the issue of physical violence should go further than to say the mother should exercise appropriate restraint when disciplining the children and ensure that these events do not occur again.
Furthermore, I note the mother has moved to take steps to deal with this by engaging the assistance of Ms N.
k) Any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is no such order in place.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It was put to the father that his request to share equally in the time spent with the children was simply a staging point for his application to have the children live with him full time. The father was repeatedly asked what made him change his mind and seek less time with the children than his original application. His answers were not convincing.
On more than one occasion when asked had he changed his mind, he answered: “I can’t say”. In addition, he went on to say that if she (the mother) never changed in the seven years that the parties were residing together in Australia, then it is unlikely that she would have changed in one year. The parties will need to learn to communicate for the sake of the children. There is more need on them to communicate when they have equal time and therefore a far greater potential for trouble leading to further litigation.
I therefore have some concern that should an equal time arrangement be ordered, this would lead to further litigation, particularly in view of the parties’ complete inability to communicate with each other. There will no doubt be difficulties with the routine I am ordering, however I have no doubt that the difficulties will be exacerbated should I order the children spend more time with their father.
Section 60CC(4) - Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
I have already commented on this aspect. The concept of either party facilitating the other parent in participating in making decisions about major long-term issues in relation to the children is completely alien to them. In that regard both parents have failed.
To their credit, however, they have been able to facilitate the other parent spending time with the children and, to a degree, communicating with the children in accordance with the orders of this court. It is expected that this will continue. Furthermore, they have agreed to participate in post-separation programs which can be seen as an acknowledgment of the problems they have faced and an attempt to fix those problems.
The father, however, has failed to fulfil his obligation to financially support the children, particularly when there is a demonstrated capacity to do so. The mother has in the past experienced problems with anger management, gambling and drinking. She has recognised this and taken steps to fix it.
Ms N’s Reports
Save and except for the striking out of one sentence, the reports of
Ms N dated 31 March 2008 and 19 September 2008 were admitted by consent.
Ms N was available for cross-examination but the father chose not to take this opportunity and her evidence was uncontested.
Her report, where it refers to the mother’s allegations about her treatment at the hands of the father, must be treated with caution, as the father did not have the opportunity to discuss these matters with
Ms N. The history of her contact with the mother commencing on
12 April 2001 is of considerable assistance however.
Her observations of the bruising and black eyes in 2003 is a matter for concern. The father, it is noted, denies the allegations of violence towards the mother.
The acknowledgment by the mother of her gambling, drinking and parenting problems and her attempts to address those issues are also noted. The fact that she was over the years prepared to recognise problems and seek assistance to address those matters was not disputed by the father. Whilst I have concerns about the children being taken to see Ms N late in 2008 (without the knowledge of the father), when such action is viewed in the context of the mother’s motivation to improve her parenting it supports my finding that when a problem is encountered the mother is capable of seeking assistance to address that issue.
Section 65DAA
The father and the mother have agreed that there should be an order that they have equal shared parental responsibility. It is not going to be easy and I note to their credit that they have agreed to attend the parenting courses as set out in the orders. It is hoped that this will begin to make inroads on the conflict that has been so apparent to date.
As a consequence of making such an order, I must now, pursuant to the provisions of s.65DAA of the Act, consider the children spending “equal time” or “substantial and significant time” with each parent in certain circumstances.
Equal time
I do not, for the reasons set out above, consider that the children spending equal time with each of their parents would be in their best interests. I agree with the comment made by Ms Warhaft that the risks in taking the children out of their mother’s care and placing them with their father may out-weigh the benefits. I say this bringing to account the factors set out in these Reasons.
In any event I do not consider the children spending equal time with each of their parents is reasonably practical. In determining reasonable practicality I have regard to the provisions of s.65DAA(5) which requires me to consider a range of factors which are discussed below.
(a) How far apart the parents live from each other
I do not consider this to be an issue in this case, as both parties have managed a weekly routine without incident.
(b) The parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents
The father’s evidence is that he will continue to work. His hours of work are from approximately 7am until 4pm each day five days per week. He says he has an understanding employer and would be able to make appropriate arrangements for the delivery of the children to and from their school and the care of the children whilst he was at work.
He also said that when and if he has any difficulties with this then he would be able to call on the assistance of his friend Mr D. I have difficulty accepting that the father will be able to maintain his work commitments and his commitments to the children at the same time without the assistance of Mr D. Whilst I appreciate that Mr D has an ‘uncle-like’ relationship with the children, he is not their mother. In the circumstances I would find it impractical for the father to have the care of the children for seven out of fourteen working days.
(c) The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
A shared care arrangement (representing an equal time with each parent) requires a significant amount of communication between the parties. It is hard enough parenting children in a house where the parents are not separated. Where the parents are separated and where there is a level of conflict of this degree, then the communication becomes almost impossible. The parties are simply not ready to enter into this arrangement and to do so would be detrimental to the best interests of the children.
(d) The impact that an arrangement of that kind would have on the child
In my assessment, the impact of a shared care arrangement is more likely than not to be detrimental to the children’s best interests. The children’s involvement in this matter is wrong (encouraged by the father, as discussed above). There is a reasonable risk that this will increase in a shared care arrangement. The mother, who has been the primary care-giver to date and has been the primary liaison source with the school and agencies involved with the children, is best placed at this stage, with children of this age, to continue in that role.
In reaching my decision I have also had regard to the list of authorities provided by the mother’s counsel and in particular to those decisions that have been made since the amendments to the Act in 2006. The authorities provide, in essence, that there must be some degree of co-operation for an equal time arrangement to work and that is not the situation here at present.
Substantial and significant time
Pursuant to s.65DAA(2) of the Act where:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
The father clearly loves the children and wishes to be more involved with their lives. Both parties have been subject to criticism for the high level of conflict that the children have witnessed prior to, and since, separation. In spite of that, the children have managed well enough, although it is evident that [X]’s learning difficulties are now coming to the fore.
It would therefore seem appropriate, and in the best interests of the children, that there be an order that will enable their father to spend substantial and significant time with the children as opposed to equal time. This would be reasonably practical and, in view of their communication difficulties, leave the mother with a clear weekend to have some leisure time with the children and enable her to continue their schooling. It would also enable the father to step up his involvement with the children. There is also a greater chance that he will be able to tailor his work commitments to focus on the children whilst they are with him without having to rely on the assistance of others. To go any more than four nights, however, would not be practicable for the reasons previously discussed when considering equal time and I would therefore order accordingly.
Conclusion
In concluding, having given consideration to the relevant matters in Part VII of the Act, it is open to me to find that the children have a good relationship with both parents. Although their relationship with their father may be slightly better, that may well be coloured by his willingness to buy them what they want.
The capacity of the father to care for the children is coloured by his working commitments, his lack of experience and his attitude to the responsibilities of parenthood, including his choice not to pay child support.
The mother’s attitude to the responsibilities of parenthood, and in particular her failure to bring evidence from Mr B, and her admissions in respect of the disciplining of the children are rightly the subject of criticism.
On the other hand, the mother must be credited with having been the primary care-giver for the children to date, with little or no financial support. She has managed the task of parenting the children and the comments by Ms Warhaft, the migrant support worker and the school in respect of the mother’s child focus are noted. The father, in contrast, has not had nor has he demonstrated any capacity to attend to the day-to-day matters of parenting. There is no suggestion of any involvement with the school nor any external activities for the children. It is noted that any such involvement by the father in the future can only be to the benefit of the children and there could be no criticism of him attending the school on his Thursday or Friday, or such other time as is appropriate, to support his sons.
This has been a finely balanced exercise. Both parties are rightly the subject of some criticism. It is hoped that they will take from this the fundamental need of the children to enjoy their time with their parents without being subject to the conflict and negative emotions that have overshadowed the history of this matter in such a significant way. It may be that one day the care of the children will be shared but it is clear they are not ready for it now.
In accordance with the above reasons, I make the orders found at paragraphs 5 to 10 (inclusive) set out at the commencement of these Reasons, in addition to those made by consent at paragraphs 1 to 4 (inclusive).
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of FM Cole
Associate: Ms H. Priest
Date: 17 February 2009
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