C and McA
[2003] FMCAfam 227
•25 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & McA | [2003] FMCAfam 227 |
| FAMILY LAW – Children – contact – best interests – family violence – consequences of exposure of child to violence between mother and subsequent partner. Family Law Act 1975, ss.60B, 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | D C |
| Respondent: | R McA |
| File No: | DNM2233 of 2002 |
| Delivered on: | 25 June 2003 |
| Delivered at: | Darwin |
| Hearing Dates: | 13 January & 19 June 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Collier |
| Solicitors for the Applicant: | Collier Deane |
| Counsel for the Respondent: | Mr Goldflam |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That the child of the relationship, U C C born the 12th of November 1995 live with the father and he be responsible for making all day to day decisions concerning her care, welfare and development.
That the parties share responsibility for making all long term decisions concerning the child’s care, welfare and development.
That the contact orders as made on the 13th of January 2003 in respect of U continue until 26 January 2004 and thereafter the mother have contact with the child each alternate weekend from after school on Friday until 6.00pm the following Sunday, with such contact to be suspended during school holiday periods.
That the mother have contact with the child for the first half of the April, June/July and September/October school holidays in each year commencing in 2004.
That the mother have contact with the child for the first half of the Christmas school holidays in 2004 and each alternate year thereafter.
That the mother have contact with the child for the second half of the Christmas school holidays in 2005 and each alternate year thereafter.
That in the event that these orders provide for the child to be either residing or on a contact visit with one or other of her parents on Christmas Day, the other parent shall have contact with the child for
3 hours on Christmas Day in each year.That in the event that these orders provide for the child to be either residing or on a contact visit with one or other of her parents on the child’s birthday, the other parent shall have contact with the child for
3 hours on the child’s birthday in each year being the 12th of November.That if the child is not residing with the father on Father’s Day and the father’s birthday, the father shall have contact with the child on Father’s Day and the father’s birthday on such terms as may be agreed between the parties and failing agreement for a period of 3 hours.
That in the event that the mother is not having contact with the child on Mother’s Day and the mother’s birthday, the mother shall have contact with the child on such terms as may be agreed between the parties from time to time and failing agreement for a period of 3 hours.
That the mother have such other contact with the child as the parties may agree from time to time.
That each party advise the other of any change in his or her residential address or contact telephone number within 48 hours of any such change occurring.
That if the mother is unavailable to exercise any period of contact pursuant to these orders the mother telephone the father or the paternal grandmother to advise accordingly.
All other applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
DNM2233 of 2002
| D C |
Applicant
And
| R McA |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to parenting arrangements, particularly contact arrangements, in respect of U C born the 12th of November 1995 and currently 7 years and 7 months old. The parties to the proceedings are U’s parents, her father D C and her mother R McA. Both parties are of Aboriginal heritage and live in Tennant Creek. Mr C is 29 years of age and Ms McA is 27 years of age. They have been separated for many years, since 1997. Sadly, the parties have been in dispute with one another for some years now. The principal issue at this stage is whether U should have overnight contact with her mother and if so, when should that contact commence.
The father commenced these proceedings in March of 2002. He sought orders that U should live with him and have contact with her mother as the parties agreed from time to time but such contact not include overnight contact. The mother does not seek the residence of U. As a result, on the 18th of June, 2002, a residence order was made in the father’s favour. A number of contact orders have been made since that time, following various hearings involving the parties.
Most recently, on the 13th of January, 2003, a final hearing commenced before me at Alice Springs in which both the parties; Mr J R, the mother’s present partner; and Ms Pamela Stein, a domestic violence counsellor based in Tennant Creek; all gave evidence and were cross-examined by the respective lawyers for each party. Following that hearing, I ordered that a family report be prepared, which report was to specifically address the following issue:
“To assess the consequences (if any) of the exposure of the said child (U) to violence, whether physical or verbal between the mother and her partner Mr R and the appropriate level of contact and conditions associated with such contact.”
On that same date, I made orders for U to have contact, during daylight hours, on three occasions each week with her mother. It is the father’s position that this situation should continue for the time being. It is the mother’s position that she should have contact from after school on Friday to 6.00pm the following Sunday of each alternate weekend and for half of each school holidays.
Unfortunately, there were delays in the family report being prepared and it was released to the parties only recently. Following its release, the Court reconvened the hearing and Mr Ralph, the writer of the report was required for cross-examination by the mother’s counsel.
As a result of the report, the father proposed that the following orders should be made:
1.
That the regime of contact ordered by FM Brown on
13 January 2003 continue until Friday 5 March 2004;
2. That on Saturday, 6 March 2004 and each alternate week thereafter the child have contact with the mother from 09.00am Saturday to 09.00am Sunday;
3. That on Friday, 12 March 2004 and each alternate week thereafter the child have contact with the mother from after school Friday to 09.00am Saturday;
4. That the child have contact with the mother for the first half of the April, June/July and September school holidays in each year;
5. That the child have contact with the mother for the first half of the Christmas school holidays in 2004 and each alternate year thereafter;
6. That the child have contact with the mother for the second half of the Christmas school holidays in 2004 and each alternate year thereafter;
7. That the child have contact with the parent with whom she is not residing on Christmas Day for three hours;
8. That the child have contact with the parent with whom she is not residing on the child’s birthday for three hours;
9. That if not residing with the father, the child have contact with him on Father’s day and the father’s birthday as agreed between the parties;
10. That if not already having contact with the mother, the child have contact on Mother’s Day and the mother’s birthday;
11. Other contact as agreed between the parties;
12. That during all periods of contact the child be at liberty to telephone the father to request that he collect her should the child wish to terminate the contact visit;
13. That during all periods of contact the mother supervise the child between the hours of 6.00pm and 09.00am unless otherwise agreed between the parties, in which instance the father be the first option as a babysitter for U;
14. That if the mother is unavailable to exercise contact the mother telephone the father or the paternal grandmother to advise accordingly.
Essentially, it is the father’s position that overnight contact should commence in March of 2004, after U has commenced the school year and, shortly after that, there should be school holiday contact. The mother is in agreement with the father so far as school holiday contact is concerned. She agrees with the terms of orders 4 to 11 (inclusive) and order 14 of the father’s proposed orders. It is her position that order 12 and 13 have the potential to create more, rather than less, discord between the parties. However, not withstanding the recommendations of Mr Ralph, it is her position that alternate weekend contact should recommence forthwith.
Background
I have already provided reasons to the parties for the Orders that were made on the 13th of January, 2003 and need not repeat them in full here, other than to say that U’s early years were somewhat disrupted, and from time to time she has lived with both of her parents. However, since mid 1999, there is no dispute that she has lived with her father, both in Perth and since July of 2001, in Tennant Creek. It is the mother’s position that this was a situation that was foisted upon her by the father, without proper consideration for U’s needs. However, notwithstanding this situation, it is the mother’s view that, due to the long standing nature of the arrangement, it would be unduly disruptive for U to move from living with her father to living with her. Accordingly, the only issue is contact.
There have been various arrangements for contact since July of 2001, in which time both parties have lived in Tennant Creek. These arrangements have included overnight contact from time to time. Orders have also been made for weekend contact. However, the difficulty, from the father’s point of view, has been the nature of the mother’s relationship with Mr R and the fact that U has been exposed to violent physical and verbal altercations between the two of them, which have involved alcohol. The father believes that this has resulted in U being apprehensive about contact with her mother, particularly at night. He is concerned that exposure to this type of violence will have long term detrimental consequences for U’s emotional development.
The mother has been involved in a relationship with Mr R for many years. She and Mr R have two children, Q E R born the 11th of April 2000 and E J R born the 25th of July 2001. It is the mother’s position that U should have regular contact with her, so that she can maintain and develop her relationship with her two half siblings.
The father believes that Mr R is a violent man, particularly when he is drinking. The dispute between the parties has polarised the maternal and paternal aspects of U’s family. There is a considerable level of mistrust between the parties and they are presently incapable of discussing matters to do with U with one another. Inevitably this has involved members of their wider families in Tennant Creek. The father has in the past taken out restraining orders against both the mother and Mr R. This has compounded the difficulties that the parties have in communicating with one another.
Unfortunately, things came to a head on the 2nd of November 2002, when there was a violent altercation in a nightclub in Tennant Creek, involving both the parties, Mr R and some others. Mr R and the mother were charged by the police with assault. Only recently, on the 8th of June, 2003, Mr R was convicted of assaulting another person in this altercation and was sentenced to one month’s imprisonment, which he is currently serving. Other charges involving allegations that Mr R had assaulted Mr C were withdrawn by the prosecution. This unfortunate incident coloured the proceedings before me in January 2003 and were one factor that persuaded me that it was likely to be in U’s best interest for her to have frequent, short periods of contact with her mother and be able to return to her father’s home at night.
The mother is Warramungu and speaks this language. She wants U also to learn to speak Warramungu and learn about traditional dancing and bush tucker from her and her family. It is her position that this cannot occur if contact continues to be restricted. She wants to be able to take U “out bush” for weekends. She also points to the fact that she was U’s primary carer from the date of her birth until 1999, as another factor that militates against her contact with U being unduly restricted. Mr C is a Walpiri/Warramungu man. Accordingly, U enjoys a rich cultural tradition on both sides of her family. However the father conceded that he only speaks a few words of Walpiri. Mrs P C, U’s paternal grandmother is of European extraction.
Both the mother and Mr R acknowledge that the relationship between them in the past has been characterised by violence. On at least two occasions the mother has been compelled to seek refuge from Mr R at the Tennant Creek Women’s Shelter. Mr R has struck the mother and caused her “to suffer black eyes”.[1] At least on some occasions, U’s has been present during these altercations. It was largely because of my concerns about these incidents, about which I made findings on the
13 January, 2003, that caused me to order the Family Report to be prepared. My concerns were also heightened by the evidence that I received from Ms Pamela Stein, a domestic violence counsellor based in Tennant Creek.
[1] See mother’s affidavit of evidence filed 11 July 2002 at paragraph 14(c)
Because of his concerns about U’s exposure to violence in her mother’s home, the father has from time to time withheld contact. This has caused the tensions between the parties, which necessarily have involved Mr R, to escalate. It was the father who arranged for U to see Ms Stein.
Ms Stein was an impressive and thoughtful witness. By training she is a secondary school teacher. However, from 1977 onwards, she has been involved in counselling and the coordination of women’s refuges in New South Wales. More recently, from 1987 onwards, she has been a child sexual assault counsellor. She first came to the Northern Territory in 1995, when she was a domestic violence counsellor in Darwin. She was appointed as part of the Northern Territory Government’s Domestic Violence Initiative. From 2001, she has been the Domestic Violence Counsellor/Community Development Trainer at the Domestic Violence Counselling Service based in Tennant Creek. Ninety two percent of the services’ clients are Aboriginal. She holds a Diploma of Art Education and more recently has obtained a Bachelor of Laws Degree. She has studied some units of psychology. She has attended numerous workshops, including ones focused on domestic violence and children. Her experience in observing the consequences for children of their being involved in violent behaviour or observing it, is obviously extensive. She has been at the grass roots of the issue.
Ms Stein saw U on three occasions on the 4th of March, 7th of September and 19th of November 2002. On the first occasion, Mr C brought U in to see Ms Stein. Ms Stein reported that U was upset about the then arrangements for contact, but in her view was “not upset enough to suspend the visits with her mother and partner.” However, Ms Stein arranged with Mr C that he could bring U back to see her if U reported any concerns in future. This was the background to the consultation of the 7th of September 2002, which apparently occurred at U’s instigation. Ms Stein saw U in the absence of her father. She described U as a bright and engaging child. U reported to Ms Stein that shortly before the consultation her mother and Mr R had had a verbal argument with one another and later that Mr R had started to choke her mother. Ms Stein graphically described what U told her about this incident, which was that Ms R had placed his hands around her mother’s throat to such an extent that she (U) was fearful that her mother could not breath and might die. U reported that both the mother and Mr R had been drinking and were swearing at one another. The description of this incident led to Ms Stein writing the following opinion:
“As a counsellor of twenty seven years, I am concerned about the violence within the natural mother’s home. This is not a safe environment for any child to be in. U does not see any violence like that in her father’s home. As a consequence U is also fearful for her mother’s safety and feels responsible for looking after her.”
Ms Stein saw U once again on the 19th of November, 2002, once again at the instigation of the child herself. Following this consultation, Ms Stein reported as follows:
“In this instance, U was concerned about the well being of her natural mother. She said she was afraid of what could happen to her mother when J R and her mother are fighting. She feels a great responsibility for her mother. This sense of responsibility for her mother is an adult behaviour, which a child of her age should not be subjected to.”
Ms Stein did not dispute that U dearly loved her mother and her half brother and sister. The concern she had was that U was fearful of Mr R and what he might do to her mother. In Ms Stein’s view U was fearful that events might occur which would lead to her mother’s death and as a result she felt a sense of responsibility for protecting her mother and preventing this happening. Clearly this was too much of a burden for a seven year old child to bear.
To her credit, the mother acknowledges that the father has some justification to be concerned about past incidents of violence between her and Mr R.[2] However, she now believes that she and Mr R are more mature than when they first met and as a result, less prone to argue with one another. She attributes many of their previous arguments to them being “jealous of one another”. She also deposed that she and Mr R drink less than they did previously. It is now her view that she and Mr R have an ability to address their disagreements in a more mature fashion. She indicated in her affidavit material that she is “aware of how important it is for all of our children not to be exposed to physical or heated verbal arguing.”
[2] See paragraph 19 of the mother’s affidavit sworn 3 December, 2002
However much of the mother’s evidence of 13 January, 2003 caused me concern in the sense that the mother seemed to assume responsibility for much of the violence that Mr R inflicted upon her. She also seemed to down play its significance. In her evidence she said her relationship with Mr R was “not an extremely violent one” because she had only had “black eyes” and “no broken bones”. She said she had never really had “a very bad bashing” and had “only been punched a couple of times”. She said of herself that she “bruises easily” and provokes Mr R by her “jealousy”. She also said that she had hit Mr R in retaliation. I formed the view that, to some extent, the mother had become desensitised to the violence inflicted upon her in the past. No violence can be justified in this way.
Mr R was born on the 7th of April, 1979 in New Zealand. He has a Maori heritage. However, he has lived in Tennant Creek with his parents since 1986. He and the mother began their relationship at sometime in 1999. They have lived together since this time. Mr R has prior convictions for criminal damage, which resulted in a fourteen day sentence imposed under the Northern Territory mandatory sentence legislation and assault and criminal damage imposed on the 21st of June 2000. These latter offences were committed on the 15th of December 1999, after Mr R had been drinking with friends. He apparently had an argument with the mother and in frustration jumped on the bonnet of a car and kicked in its front windscreen. The occupant of the car was a stranger to him. He was sentenced to ten months and twenty-eight days imprisonment for these offences, to be released after serving the minimum mandatory period of three months for his second criminal damage offence. He deposed that his gaol sentences made him realise that he had a problem with alcohol and controlling his temper. This resulted in him reducing his drinking and attending an anger management course, whilst in prison. Accordingly, it is his position that the father’s concerns in respect of his violence against the mother have been addressed. He deposes that the home he and the mother occupy is a happy and stable environment for children. The home is regularly visited by members of the mother’s extended family, including her brother and his three children, who are aged nine, eight and six. U enjoys a close and loving relationship with her three cousins.
In his evidence given on 13th January, 2003, Mr R acknowledged that he had “abused” the mother but that he had since “changed his ways”. He asserts that “every couple has arguments” but that he “no-longer went overboard every day”. At the core of this matter is the truth or otherwise of Mr R’s assertion that he has changed his ways and U’s perception of this. To use Ms Stein’s terminology, Mr R and U’s attitude towards him is the “lynchpin” of the case.
It was against this background, especially the concerns raised by Ms Stein and the obvious suspicions and tensions between the parties, particularly arising out of the incident of the 2nd of November, 2002, that caused me to order the family report in this matter.
On the 12th of July 2002, following a contested interim hearing, I made Orders that allowed for the mother to have contact with U each alternate weekend from the conclusion of school on Friday until 6.00pm the following Sunday and for one week during the September school holidays. U was to be exchanged for contact at the home of Mrs C, her paternal grandmother. This arrangement broke down in August of 2002, following the incident where U allegedly saw Mr R choking the mother. In his evidence, Mr C reported that U suffered nightmares concerning her mother being bashed. He was also concerned about her “acting out” during the day. The father did not make application to suspend the operation of the orders and the mother did not institute enforcement proceedings. There was no contact until the time the final hearing had been scheduled.
In those circumstances, on 13 January, 2003, I was of the view that contact should be resumed but that it should be more circumscribed than previously, in order to avoid stress on U and should not then include overnight contact. To the credit of the parties, the arrangements embodied in the orders of 13 January 2003, have worked more or less satisfactorily. There have been some difficulties with Saturday contact, which the mother attributes to lack of transport and communication problems with the father. The father believes that the difficulties have flowed from the fact that the mother and Mr R go out socially on Friday evenings. As the parties have not given any further viva voce evidence or been cross-examined further, I am not in a position to resolve this dispute of facts.
Unfortunately, there were delays in Mr Ralph preparing the family report and the hearing of the matter could not resume until the 16th of June, 2003, in Alice Springs.
The Family Report
Mr Ralph is a psychologist of twenty five years’ standing. He holds both Bachelor and Masters Degrees in Psychology from the University of Sydney. In the initial part of his career, he was engaged in child protection work for the relevant statutory authorities in both New South Wales and Queensland. For the past fourteen years he has been a Family Court Counsellor. He is currently manager of mediation at the Darwin Registry. In that role he has completed literally hundreds of family reports and has gained extensive experience in interviewing children. Through his work in connection with the Family Court in its Alice Springs and Darwin registries, he has extensive experience in working with Indigenous families in conflict. I found his report and evidence well considered and persuasive and as a result, I accept his conclusions and recommendations.
Mr Ralph interviewed U in Tennant Creek on the 19th of May 2003. He noted that she was quite guarded in her discussions with him about her family’s situation. Her indications to Mr Ralph about contact and Mr R do seem to display a certain level of ambivalence. She described contact visits with her mother as “a bit fun going over at times” and described Mr R as “a little bit nice”. When asked by Mr Ralph what she would like him to tell the judge in relation to staying overnight at her mother’s home U stated, “tell the judge I am a little bit happy to go sleep over but I’m not sure”.[3]
[3] See Family Report paragraphs 14/17
To her great credit, Ms McA acknowledged U’s reticence about overnight contact in her interview with Mr Ralph. Ms McA noted that U’s requests for overnight contact were not consistent and that at times she seemed keen to return to her father. For this reason, Ms McA considered it “difficult” to determine U’s true feelings in relation to overnight contact.[4] In Mr Ralph’s words, his impression of U was that she was “less than enthusiastic about contact”. He suspected that this was due to her past experiences of contact and because she had observed “significant” violence during it. As a result, he considered that the Court should be cautious in respect of extending contact from its present limits. In his view, the Court should allow sufficient time for U to have a level of “ease and comfort” with the present level of contact. In this regard, it was important that both parties endeavoured to be consistent in adhering to the present regime, particularly in respect of Saturday contact.
[4] See Family Report paragraph 18
Mr Goldflam, who appeared for the mother, was critical of Mr Ralph’s methodology in respect of the report, in the sense that he had not observed U in either the presence of her mother or Mr R and so was unable to assess how at ease or otherwise, U appeared when with them. I do not believe that there is any weight to this criticism. Mr R was at work in Tennant Creek at the time that Mr Ralph prepared his report and accordingly was not available to attend an appointment with Mr Ralph. However, Mr Ralph did speak with him on the telephone. In this telephone interview, Mr R reported that his violence towards Ms McA had ceased and that he no longer “flew off the handle”. He also reported that trust was gradually being restored between himself and U. In respect of U’s relationship with her mother, Mr Ralph indicated that it was his view that the two had a close and comfortable relationship with one another and in those circumstances, it was not necessary for him to observe U with her mother.
In general terms, I asked Mr Ralph what were the potential effects for a child of U’s age of being exposed to family violence, particularly of witnessing a parent being assaulted. In Mr Ralph’s view, the potential consequences for such a child were to arouse in him or her, a sense of insecurity and a lack of trust in his or her familial environment. This could have serious consequences for the child’s sense of self-esteem and may in future undermine the child’s ability to become properly integrated into adult society. These consequences could be serious and long-term in respect of the child’s psychological and emotional development.
In the summary and recommendations section of his report, Mr Ralph wrote as follows:
“U has witnessed violence between her mother and Mr R in the past while in the care of her mother. This experience has had a traumatic impact on U who has attended counselling at the Domestic Violence Counselling Service in Tennant Creek in an effort to address the effects of this experience. Although the mother and Mr R report that violence no longer occurs in their relationship it is likely that U is still experiencing the effects of having witnessed violence. A consequence of this is likely to be on-going concern regarding the safety of her mother and a tendency to be distrustful of Mr R as the perpetrator of violence (against both her parents).
To his credit Mr R has been able to acknowledge the inappropriateness of his violence and the impact it has had upon the children. He also acknowledges that he needs to acquire the trust of U and he seems intent on achieving this through the gradual extension of contact. He also acknowledges that over-night contact should occur when U is ready for this contact to occur. Neither Ms McA nor Mr R present as confident of knowing U’s true wishes in relation to over-night contact.
U herself when interviewed presented as less than enthusiastic in discussing the prospect of having overnight contact at her mother’s home.
I believe that U’s past exposure to the violence of Mr R; Ms McA’s hostility towards the father and their inability to communicate; the tension existing between the family groups; and the recent difficulties in relation to weekend day contact, are all factors that suggest caution should be exercised in any decision to extend contact further than its current level.
I am of the opinion that U is likely to require more time before she will feel comfortable in undertaking over-night contact with her mother. I believe she requires time to further develop her relationship with Mr R and to come to trust in his capacity to care appropriately for her (and her mother) and to demonstrate the changes he seeks in overcoming a propensity for violence.
I believe that with increasing maturity and the gaining of confidence and trust in her relationship with Mr R that eventually U will be accepting and comfortable of undertaking overnight contact with her mother. This achievement would also be promoted by both parents seeking to minimise their own (and others) display of hostility or bitterness towards the other party and thereby ensure that U is not exposed to any negativity relating to either her mother, father or others.
It is recommended that the current contact arrangement remain in place until U returns to school at the start of 2004. I believe it important that the mother make every effort to ensure that U is not “stood up” as a result of her inability to collect U on Saturdays. Provision should be made in any contact order as to the process for the mother (and father) to follow if either is unable to meet his/her responsibilities in relation to contact. The smooth, consistent working of contact arrangements is fundamental to U developing trust and confidence not only in her relationship with her mother and Mr R, but also in relation to her parent’s capacity to work cooperatively in making appropriate arrangement for her.
I believe that the commencement of overnight contact in January 2004 will allow U to further develop a positive experience of contact with her mother and her family. This experience will be promoted by an absence of violence and conflict in the mother’s household and through U’s experience of a smooth and consistent contact arrangement if this can be achieved.”[5]
[5] See Family Report paragraphs 31 - 37
Mr Ralph was asked when he believed block school holiday contact should recommence. He suggested that this should occur after the reintroduction of overnight contact and proposed the Easter holidays in 2004. This is generally in line with the proposals of Mr C, with which Ms McA agrees. An issue also arose as to whether there should be weekend contact in the next three weeks, whilst Mr R was incarcerated. To his great credit, Mr C has indicated that he is prepared to agree to U having contact with her mother on the weekends whilst Mr R is away, from 9.00am Saturday until 6.00pm the following Sunday. I am anxious that these contact visits should not be embued with unnecessary significance. Mr Ralph was of the view that U should be told that it was an opportunity to help out her mother, whilst Mr R was away.
The law applicable to parenting applications
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve U’s best interests.
Section 68F(2) factors
a) The child’s wishes
U is not yet eight years of age. Her wishes in respect of overnight contact are ambivalent. In all the circumstances of this case, particularly U’s tender years and vulnerability, I do not believe that this is a strongly relevant consideration.
b) That nature of the relationship of the child with each of the child’s parents and other significant people
U has a close and loving relationship with both her parents and indeed with her two half siblings, Q and E. Since August of last year, U has not had any periods of overnight contact with her mother. There is no doubt that during the first years of her life, the mother provided the majority of care for U and as a result, there can be no doubting the strength of the bond between the two of them. Mr Ralph was asked whether he considered that the cessation of overnight contact for such a lengthy period of time until January of 2004, as he proposed, would impair the strength of the bond between U and her mother. He conceded that there was some possibility of this but considered that the need to protect U from emotional harm as a result of her reticence about contact with Mr R was a more important consideration. I agree with Mr Ralph’s assessment in this matter. In my view, U does have an ambivalent relationship with Mr R and continues to express some uncertainty towards him. In those circumstances, I believe that it is incumbent upon the Court to be cautious in respect of extending the current arrangements for contact.
c) The likely effect of any change in the child’s circumstances
U has been living with her father for approximately four years. The proposals of neither of the parties involve any great changes for U. Rather it is a question of the extent of contact that she should enjoy with her mother, with whom she enjoy a close and loving relationship.
d) The practical difficulties and expense of the child having contact
Both parties live in Tennant Creek, a small outback community of some 3,000 souls. Although it is undoubtedly very hot in the summer months and as a result it is difficult to walk around the town, it is still a fairly compact place. Due to its size, it is inevitable that the parties will frequently come into contact with one another. It is essential that they endeavour to remain civil with one another and avoid the expression of any hostility that they may feel for the other, particularly in the presence of U. It is also important that each of the parties adhere to their responsibilities to be punctual and reliable in respect of collecting and returning U before and after any period of contact. Given the size of Tennant Creek, it is my view that there are few, if any, practical considerations preventing contact from occurring regularly, as will be ordered by the Court.
e) The capacity of each parent to meet the child’s needs, including emotional and intellectual needs
In the context of this case, which is concerned with contact, I believe that the evidence indicates that both parties are capable of providing for U’s needs.
f) The child’s maturity, sex and background, including her connection with the lifestyle, culture and traditions of Aboriginal peoples
U is a child with a rich cultural tradition on both sides of her family. She is fortunate that she will be able to inherit knowledge and language of both Walpiri and Warramungu society from her father and mother. These are cultures that remain vibrant and largely intact within Tennant Creek and its surroundings. I acknowledge that it is important for U’s sense of cultural connection that she spends significant periods of time with her mother in a Warramungu cultural setting and has the opportunity to learn about Warramungu language and traditions, including the collection of traditional foods and bush living skills. However, that need must be balanced with the need to protect U from emotional harm in both the short and long term. It is essential for U’s sense of wellbeing that she feels that her mother is safe from harm. This issue is clearly at the centre of this matter.
g) The need to protect the child from physical or psychological harm caused, or that may be caused by:
(i)Subjected or exposed to abuse, ill treatment, violence or other behaviour; or
(ii)Being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards, or may affect, another person;
i) Any family violence involving the child or a member of the child’s family
j) Any family violence order that applies to the child or a member of the child’s family
As was indicated above, these various considerations are the most significant matters in this particular case. There can be no doubt that U has been exposed to significant violence occurring between her mother and Mr R. Most recently, in August of 2002, she observed Mr R choking her mother. As a result of this incident, U was fearful that her mother might die. She has also observed Mr R punch her mother on at least one occasion and has been witness to violent verbal interactions between the two. She has been compelled to seek sanctuary with her mother at the Tennant Creek Woman’s Shelter on at least two occasions. The significance of these various incidents cannot be discounted. As is clear from the evidence from both Ms Stein and Mr Ralph, they have great significance for U herself and have the potential to do her grave emotional harm in both the short and long term. It will take her some time to come to terms with the incidents.
I accept Mr C’s evidence that, following the incidence of August 2002, U suffered nightmares and was unsettled. I also accept that she continues to express considerable reticence about Mr R and does not yet have confidence that he has significantly changed in respect of his behaviour towards her mother. At this stage in U’s mind, there always exists the potential that Mr R will become violent towards her mother. Given her present stage of intellectual development, U may feel responsible for this state of affairs and believe that it is her responsibility to protect her mother from harm. She is not able to do this. The consequences of this perception on the part of U are significant. Exposure to this type of violence also has implications for her development as an adult.
Ms McA acknowledges that U is somewhat reticent about extending the current level of contact. However, I am concerned that she may have a tendency to down play the seriousness of the violence in which she has been involved with Mr R and underestimate the significance of it for U, particularly so far as U’s emotional wellbeing is concerned and the consequences of it for U’s long term development as an adult.
The evil that is represented by violent conduct of the type complained of by Mr C was described by the Full Court of the Family Court In the Marriage of JG & BG[6] and In the Marriage of Patsalou[7]. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict and respond to violence in future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents and other significant people. In this regard, a person who uses violence against another as a means of resolving a dispute or who is derogatory of any other person, especially one or other of the child’s parents, is not a suitable role model for children nor is it appropriate for a parent, either consciously or unconsciously, to condone such behaviour.
[6] (1994) 18 FamLR 255
[7] (1994) 18 FamLR 426
Conclusions
Bearing all these matters in mind and in particular the views of both Ms Stein and Mr Ralph, I believe that it is incumbent upon the Court to be cautious in respect of extending the current orders for contact. In particular, the orders should not be extended until it is clear that U is likely to be comfortable with such an extension. Given her extreme reaction to violence in the past, I am satisfied that on balance it is appropriate to retain the current arrangements for the next six months, as Mr Ralph recommends.
I am conscious that the mother will be disappointed with this. However, in the short term, I do not believe that to extend the orders for another six months or so will unnecessarily undermine the current relationship that she enjoys with U or unduly prevent U from being involved in the cultural aspects of Warramungu life that her mother can offer her. It is of course difficult to assess exactly when U will be ready to recommence overnight and holiday contact with her mother. In my view, Mr C is being unduly cautious in this regard. Given the circumstances, I can well understand his position. However, in my view it would be appropriate to recommence the overnight contact to coincide with the start of the school year in 2004 and to reintroduce school holiday contact shortly after that, as the parties have agreed.
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 fifty-one (51) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 25 June 2003
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