Campana and Campana
[2007] FMCAfam 520
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMPANA & CAMPANA | [2007] FMCAfam 520 |
| FAMILY LAW – Interim arrangements for care of children aged 5 and 3 – parties separated in 2004 – orders made for shared care regime in February 2005 by consent – father recently charged with criminal offences – whether presumption of equal shared parental responsibility applies – allegation of child abuse – whether appropriate to apply presumption at interim stage – assessment of risk – whether risk unacceptable. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 64B and 65DAA |
| B & B (1993) FLC 92-357 Re: W(Sex abuse: standard of proof) (2004) FLC 93-192 at 79, 217 W & W [abuse allegations: unacceptable risk](2005) FamCA 892 Goode & Goode [2006] FamCA 1346 M & M (1988) FLC 91-979 N & S and the separate representative (1996) FLC 92-655 |
| Applicant: | MS CAMPANA |
| Respondent: | MR CAMPANA |
| File Number: | ADC2918 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 19 July 2007 |
| Date of Last Submission: | 19 July 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Holland |
| Solicitors for the Applicant: | Angela Ferdinandy |
| Counsel for the Respondent: | Mr Noble |
| Solicitors for the Respondent: | Doyle Kingston Swift |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage H born in February 2002 and R born in October 2003.
The children live with each of their parents in a shared care arrangement on a week about basis moving between their respective households at a time to be agreed between the parties and failing agreement to be at 5:30pm each Friday.
The father undergo supervised drug screen testing, at his own expense, on a fortnightly basis and provide the results of such drug screen testing to the mother’s solicitor as soon as the results are to hand.
An injunction issue and the father be restrained from exposing the children to any pornographic material of any nature whatsoever.
An injunction issue and both parties be restrained from denigrating the other in the presence or hearing of the children.
The parties jointly commission a suitably qualified expert, the identity of whom is to be agreed between the parties and failing agreement to be as nominated by the court, to prepare a family assessment with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
This matter be listed for final hearing in Bxxx the week commencing 12 November 2007 NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
Each party file and serve all affidavits of evidence on which they intend to rely at trial hearing 28 days prior to the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Campana & Campana is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC2918 of 2007
| MS CAMPANA |
Applicant
And
| MR CAMPANA |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern interim arrangements for the care of two children H born in February 2002 and R born in October 2003. Because they are interim proceedings, the hearing before me has been in shortened form, without oral evidence or cross-examination of the parties concerned. Accordingly, I am not in a position today to make definitive findings of fact about many issues which are in dispute between the parties.
However, notwithstanding this state of affairs, the urgency of the situation requires a decision be made. The applicant in the proceedings is MS CAMPANA. She is the children’s mother. She seeks orders that would see the children predominantly living with her and having only curtailed interactions with their father for the time being.
The respondent to the application is MR CAMPANA. He is the children’s father. It is his position that the children should live with him and the mother in what is usually called a shared care arrangement, moving between their respective households on a week about basis.
As is commonly the case in interim hearings such as this one, the parties rely on different but equally important considerations, which arise under the Family Law Act, in support of their respective positions. These considerations arise in section 60CC(2) of the Act and are described in the legislation as being primary considerations in determining a child’s best interests.
It is the mother’s position that considerations of protecting the children from harm, particularly the possibility that they will be subject to abuse, if left in the father’s care for any extended period of time, should be paramount in the court’s deliberations at this interim stage. On the other hand, it is the father’s position that considerations of the children maintaining a “meaningful” relationship with him are likely to be more central to their well being at this stage. An outcome which will be impossible, if he sees them for only a few hours each week, as the mother currently proposes.
Background
The mother was born in October 1974. The father was born in November 1967. The parties married at Bxxx in April 1999. They separated in late 2004. Both parties were born in Bxxx and lived in the town during their relationship. They and the children concerned continue to live in Bxxx.
On 4 February 2005, the Local Court at Bxxx made final orders, with the consent of each of the parties, in respect of arrangements for the care of H and R. It was ordered that the children should live with each of their parents, on an equal time basis, moving between them every three days. These orders remain in force, although the parties agree that they have not been strictly followed for some time. It is agreed between the parties that subsequent to these orders, it was mutually agreed between them that the children should live with their parents on a week about basis.
Relations between the parties and so arrangements for the children’s care, reached a point of crisis in early May of 2007, when the father was charged with a number of criminal offences. The offences were as followed: possession of cannabis; possession of ammunition without appropriate licence; and acting with intent to pervert the course of justice.
The father has not been convicted of any of these offences and has not indicated how he proposes to plead in respect of them. It seems to be the case that the quantity of cannabis alleged to have been found in his possession is 149 grams. The mother does not appear to be greatly concerned about the ammunition charge, as the father has indicated to police it belonged to his late father.
Since early May of 2007, the time the children have spent with the father has been limited. The mother commenced these proceedings on 1 June 2007. She sought that her application be dealt with on an urgent basis. However, it has only been fairly recently that the father has been in a position to formally respond to the mother’s application, which he did on 16 July 2007.
The respective positions of the parties
The mother seeks the suspension or discharge of the orders made at Bxxx on 4 February 2005 in respect of the children living with the father. In lieu thereof, she proposes that the children spend time with him between 4:00pm and 6:00pm each Wednesday and from 10:00am until 1:00pm on alternate Saturdays. She also seeks injunctions restraining the father from taking illicit drugs, particularly cannabis, during the times he spends with the children; restraining the father from exposing the children to pornography; restraining the father from smoking cigarettes in the presence of the children; and denigrating, threatening or intimidating her.
The father’s position is simply stated. He seeks orders that would see the children living week about with him and the mother. He is prepared to undergo regular drug screen tests. Both parties have filed affidavits in respect of their respective positions. Neither party has called any other evidence.
In addition, on 1 June 2007, the mother filed a notice of child abuse in respect of H and R. In this notice, she alleged that the children were at risk of being exposed to pornographic material, including magazines, videos and DVDs, by the father. She also alleged that the father’s smoking of marijuana and cigarettes posed a risk of abuse to the children.
In this notice, the mother also raised issues relating to family violence. In this regard, she pointed to an incident, which she alleged occurred between the parties in early 2005, when the father allegedly entered her premises in a violent and irrational manner. Mr Holland, counsel for the mother, conceded that this incident was not relevant to the court’s deliberation in this matter, as it happened prior to the orders of 4 February 2005.
The evidence of the parties and the areas of dispute between them
As has previously been indicated, the parties mutually agreed to modify the Local Court orders, so that H and R lived with them on a week about basis. It is the mother’s position that, notwithstanding this agreement, the children have lived more with her than the father in the last twelve months or so. The father does not accept this proposition and asserts that the arrangement was modified to suit the mutual convenience of both parties from time to time and effectively the children have lived with him and the mother for roughly equal periods of time over the last few years.
The mother asserts that the father smokes marijuana on a daily basis and this has had detrimental consequences for his mood and level of motivation. As a result of the father’s smoking, both marijuana and cigarettes, the mother asserts that the children are frequently exposed to smoke. The father denies the gravamen of these allegations.
The mother is critical of the state of cleanliness of the premises in which the father lives and where the children have spent time with him in the past. She describes premises that are inadequately ventilated and smoke filled. The premises seem to be associated with a hotel. In his affidavit, the father describes himself as an hotelier. The mother alleges that the children are frequently allowed to play on licensed premises and come into contact with intoxicated patrons of the hotel. It is the clear import of the mother’s affidavit evidence that the father is lax in his supervision of the children.
The father denies that his premises are inappropriate for children of the ages of H and R. He denies that there is anything untoward in the children coming to the hotel, something which occurred when the parties lived together. He asserts that when he has been working at the hotel, the children are usually in bed by 7:30pm and are supervised either by him or his former girlfriend, Ms N.
The mother asserts that the father is “renowned” for playing pornographic films and is “infatuated” with pornography, which he views in the form of videos, magazines and through the internet. The mother alleges that this was the father’s practice during the parties’ relationship and she has no reason to consider that he has changed his behaviour. She is concerned that the children have been exposed to such pornography.
It seems to be the case that the mother cannot categorically confirm, from her own experience, that H and R have been exposed to such pornographic material. However, she asserts that she has heard H indicate that “Dad has magazines with penises and vaginas in it”. She also asserts that H has made inappropriate sexual references to R, which she believes are indicative of the children having been exposed to explicit sexual material.
Again, the father denies the gravamen of these allegations. It is his position that both he and the mother watched pornographic films consensually in the hotel in private. He denies that the children have ever been exposed to pornographic material. He is concerned at any suggestion that H may have made sexual innuendos to R but has no personal knowledge of how such an occurrence arose. He asserts that any magazines he has had are innocuous in content being “People” and “Picture” magazines.
To the contrary, it is the father’s position that the mother has exposed the children to sexually explicit material in her home. This material has included photographs of herself and others naked. The father also alleges that the mother has other sexually explicit material in her possession. Overall, it is the father’s position that the mother has utilised the police charges against him, as a pretext to reduce his involvement in the children’s lives, for some unspecified motive of her own, unrelated to the children’s best interests.
The mother deposes that she is concerned that the father has had and possibly still has in his possession items of child pornography. This belief arises from a short article, which was published in the Bxxx newspaper, the day after the father was charged. The article indicates the police were “given information” in respect of an undisclosed person, who was believed to have child pornography. This lead to the issue of a search warrant and the seizure of a computer. The article goes on to disclose that the police will examine the computer to ascertain if further charges will be laid. It is not contentious between the parties that the person referred to in the article is the father and the premises searched his.
The mother has caused her solicitor to issue a subpoena to the New South Wales Police, directing them to produce to the court information, records and incident reports, which relate to the father. Presumably this is to ascertain the nature of the information held by the police arising out of the search of the father’s premises and whether any further charges will be laid against him. As yet, the subpoena has not been answered. By implication, it is the mother’s position that it is possible that the computer seized contains pornographic images related to children. In this context, she is concerned about the nature of the charge of perverting the course of justice, which has been laid against the father.
The mother also points to a later article, which appeared in the Bxxx paper, which names the father and indicates his appearance in the Local Court at Bxxx, in respect of charges of possession of cannabis, ammunition without a licence and acting with intent to pervert the course of justice. The article indicates that the charges arose after the police executed a search warrant on the father’s premises. No details were presented to the court in respect of the charges and the article indicates that Mr Campana did not enter any plea. He was bailed on condition that he report to police.
The father does not dispute that he is facing these charges. It is his position that he provided the mother’s solicitors with the relevant summons in respect of them. He denies any allegation that he possesses any items of child pornography. His counsel, Mr Noble indicated in submissions to the court, that his client had reserved his plea and has been advised by his solicitors to avoid public comment about the charges until it has been determined how he will respond to them, after appropriate legal advice. Mr Noble confirmed that the father was due to appear again before the Local Court at Bxxx at the end of July. The mother’s subpoena to the New South Wales Police is returnable on 1 August 2007.
It is the father’s position that he has a strong bond with both H and R. He further asserts that he has good parenting skills and the children are well cared for whilst in his care. He is concerned that his relationship with the children will suffer if he is not able to spend extended periods of time with them, a situation which he asserts has been the reality of H and R’s lives, since the parties separated, now several years ago.
On the other hand, it is the mother’s position that the court should adopt a cautious approach in any orders it makes in respect of the children and their interaction with the father, particularly given the current police charges and her assertion of the possibility of further charges being laid in respect of child pornography. In particular, she urges the court to await the return of the subpoenaed material, which may possibly either dispel or confirm her concerns about the type of pornographic material, which she asserts the father has possessed.
It is also the mother’s position that the court should direct the parties to jointly commission a family assessment in this matter. In Mr Holland’s submission, this is the most appropriate way to ascertain whether H’s alleged sexualised behaviour is referable to the father’s conduct. Again, until that assessment is to hand, she urges that the court adopts a cautious approach to the matter.
Although much of the father’s affidavit material was concerned with refuting allegations made against him by the mother, he is not without criticisms of her. In particular, he asserts that the mother has a propensity to consume alcohol to excess and has a habit of entertaining young men at her home. Regrettably, as is frequently the case in bitterly contested family law proceedings, both parties have emphasised the negative aspects of the other’s personality and behaviour. The father also asserts that, on occasion the mother, has not been able to care for H and R and has sought assistance from him. As previously indicated, the mother has a different view in this regard. These are some of the issues about which the parties have very different views. As is apparent, the respective positions of the parties are polarised in the extreme.
The case must be determined according to the legal principles in Part VII of the Family Law Act 1975 “the Act”. In particular, section 61DA, which is the section of the Act which deals with the concept of “equal shared parental responsibility.” Before the court makes any parenting order the court is required to apply a presumption that it would be in the best interests of the child concerned that his or her parents have equal shared parental responsibility for the child. If the presumption is not rebutted, the court is then required to consider whether orders should be made which would see the child concerned either spending equal periods of time with both of his or her parents or substantial and significant time.
It is the father’s position that the presumption applies in the case of each of the children and they should live with both their parents on an equal basis, both at the interim and final hearing stage. On the other hand, it is clearly the mother’s position that the presumption is rebutted by the matters which she has raised in her affidavit material, which she asserts go to the heart of the children’s best interests. The difficulty of course is that the court is not in a position to determine most of these issues at the interim stage, particularly given that the father refutes the gravamen of the mother’s criticisms of him and he has raised his own significant criticisms of the mother. In addition, the outcome of the police proceedings is obviously uncertain, particularly when the final charges against the father will be resolved.
The legal framework to be applied
I now turn to the legal framework in which this matter must be determined. The law pertaining to the making of parenting orders is set out in Part VII of the Family Law Act 1975. The Act has been significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility Act) 2006. Of the amendment the Full Court in Goode & Goode[1] said as follows:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”
[1] Goode & Goode [2006] FamCA 1346 at paragraph 72
No distinction is made in the application of this legal framework to decisions made in respect of children at the interim or final stage. In this, as in all matters to do with children, the best interest of the child concerned is the court’s paramount or most important consideration.[2] However, given the abridged nature of interim proceedings, the court must be cautious about being drawn into issues of fact or matters relating to the substantive merits of the parties’ respective cases at this stage. Such matters are more appropriately left to the final hearing of the parties’ respective applications, when an exhaustive hearing can be held.
[2] See Family Law Act 1975 at section 60CA
At the commencement of Part VII is provided a list of aims and principles, which the court is directed to try to achieve to ensure that a child’s best interests are met through any parenting order it makes. A parenting order is what it suggests – a court order dealing with such issues as: the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child.[3]Obviously these persons are most usually the parents of the child concerned, but not always.
[3] See Family Law Act 1975 at section 64B(2)
The lists of objects or aims of the legislation are set out in section 60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)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
(b)children have a 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)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).”
As is apparent, each of these objects and principles are to be applied by the court, when it makes a parenting order, in a manner which is consistent with achieving the best interests of the child concerned. The provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 have amended the objects and principles of Part VII of the Family Law Act 1975 in a significant way.
The Family Law Act 1975 provides a list of matters or considerations, which the court is required to take into account, when determining which parenting order is likely to be in the child’s best interests. This list is set out in section 60CC. There are two tiers of considerations, firstly matters which are considered to be “primary” and those which are described as being “additional”.
The primary considerations, as outlined in section 60CC(2), are as follows:
“(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.”
It seems clear that the overall importance of these two considerations is elevated over the additional considerations. The intention being to ensure that the focus of the court is on achieving the first two objects of the Act, namely protecting children from harm and ensuring they have a meaningful relationship with both their parents.
The two primary considerations have equal application and one is not to be considered superior to the other. However, I take it that the importance to be given to each of these considerations will depend on the particular circumstances of any given case.
In section 60CC(3) are set out the “additional considerations”. These additional considerations are as follows:
“(a)Any views expressed by the child concerned and any factors such as the child’s maturity or level of understanding that is relevant in the circumstances;
(b) The nature of the relationship of the child concerned with the child’s parents and with other persons (including grandparents);
(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;[4]
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from any other person (including grandparents) with whom he or she has been living;
(e)The practical difficulty and expense of the child spending time 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 parents or any persons (including grandparents) to provide for the needs of the child, including emotional and intellectual needs;
[4] This consideration is taken up by section 60CC(4) whereby the court is required to consider the extent to which a parent has or has not failed to participate in decision making about any particular child or has or has not failed to spend time with the child.
(g) The child’s maturity, sex, lifestyle and background;
(h) If the child is Aboriginal, the child’s right to enjoy his or her Aboriginal culture and the impact of any proposed order on that right;
(i)The attitude to the child and the responsibilities of parenthood as displayed by the child’s parents;
(j)Any family violence involving the child or a member of the child’s family;
(k)Any applicable family violence orders and whether such an order is a final order or was contested;
(l)The orders which are the least likely to lead to the institution of further proceedings;
(m)Any other fact or circumstance.”
Although the additional considerations are subsidiary to the primary considerations, it seems they are to be applied in a common sense way, focusing on the child’s best interests. Accordingly, there may be some instances where one of the additional considerations or a combination of them, may outweigh the primary considerations.[5] However, it seems clear that it is the legislature’s intention that the court’s central concern should be on constructing orders which protect children from harm and ensuring that they have a meaningful relationship with both their parents.
[5] See explanatory memorandum to Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 51
Given the importance the legislation places on children having a meaningful relationship with both their parents, whenever possible and appropriate, section 61DA creates for the court a presumption or starting point, when it comes to make any parenting order in respect of a child. It is to be presumed that it is in the best interests of the child concerned for the child’s parents “to have equal shared parental responsibility for the child.”
Section 61DA(2) qualifies this presumption on a number of bases namely, it is not appropriate to apply the presumption, if there are reasonable grounds to believe that child abuse or family violence has occurred.
Abuse is defined in section 4 of the Act. It means either an assault, including a sexual assault of a child or circumstances where a child is involved in a sexual activity with another person in either a direct or indirect manner or is used as a sexual object, in circumstances where there is an unequal power relationship between the child and the person concerned.
Section 61DA (3) applies only to interim parenting orders. It gives the court a discretion not to apply the presumption where the circumstances are such that it would not be appropriate to do so. No criteria are provided specifically by the legislation in regards to the type of circumstances where it “would not be appropriate” for the presumption to be applied. Accordingly the sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In Goode the Full Court indicated that the discretion was not to be exercised in a “broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”[6] By this I take it the court must find from the overall circumstances of the case, some cogent reason to exercise the discretion.
[6] See Goode & Goode (supra) at paragraph 78
Finally, pursuant to section 61DA (4), the presumption may be rebutted if evidence exists, which satisfies the court that it would not be in the best interests of the child concerned for an order for shared equal parental responsibility to be made. In the context of an interim hearing, it is likely to be often problematic for clear, uncontroverted evidence to be found, in regards to a child’s best interests, given the abridged form such interim hearings take.
The court’s consideration of a child’s best interests are governed by the matters outlined in section 60CC(2) and (3). In Goode & Goode the Full Court directed the court, at the interim stage, to consider the relevant section 60CC matters at a formative stage of its deliberation, and if possible, make relevant findings of fact about them. In the present case, where the positions of the parties are polarised in the extreme, this is a difficult task. Consideration of “less contentious matters”[7] is likely to have little utility. In addition, the Full Court in Goode has made it clear that prior care arrangements for children are a less determinative factor than they once were.
[7] See Cowling v Cowling (1998) FLC 92-801 at 85,006
However, this presumption, of equal shared parental responsibility, does not of itself determine the amount of time the child concerned spends with each of his or her parents. This issue is dealt with by section 65DAA. Pursuant to the section, if the court makes an order that a child’s parents are to have equal shared parental responsibility for their child, it must then consider whether the child spends either equal and if not equal then substantial and significant time with both his or her parents.
“Equal time” is as the term suggests. “Substantial and significant time” is defined by section 65DAA(3) and includes days that fall on both weekdays, weekends and holidays in a way which is calculated to allow the parent concerned to be involved in the child’s daily routine and other occasions which are likely to be of particular significance to the child concerned.
The clear rationale underlying section 65DAA would appear to be that children benefit, if they are able to interact with their parents, as much as possible, in a variety of environments and circumstances. The implication being that children benefit if their parental relationships are given depth and dimension by them being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
Clearly, there will be many cases where it is not possible for the court to consider making an order either that the child concerned lives with his or her parents for equal periods of time or for substantial and significant periods. Whether such outcomes are appropriate will depend on the court’s consideration of whether such orders are likely to be in the child’s overall best interests and the practicality or workability of such orders.
In section 65DAA(5) are listed the criteria which the court must consider in determining whether it is “reasonably practicable” for a child to spend either “equal time” or “substantial and significant time” with both of his or her parents. The criteria are as follows:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(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; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
It is of significance that the applicable legislation requires[8] the court to consider making either an order for equal time or substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[8] This occurs because of the use of the word “must” in the relevant part of the section.
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
However, it should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible.[9]
[9] See section 61DB of the Act
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA. However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act.
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Discussion
The relevant legislation places two factors in a position of pre-eminence in the determination of children’s best interests – the desirability of them having a “meaningful” relationship with both their parents and the need to protect them from psychological or physical harm from being subjected to, or exposed to, abuse, neglect or family violence. From the father’s point of view, the first of these considerations should be emphasised by the court, which should in its orders inaugurate the care arrangement for H and R, which the legislation recognises as being optimal – namely a shared care arrangement. From the mother’s point of view, it is necessary for the court to emphasise protective aspects in regards to interim care arrangements for the children, particularly the need to protect them from exposure to pornography, drug use and inappropriate parenting.
The mother alleges the children have been exposed to abuse and family violence. She does not persist with her claims in respect of family violence. I do not think her claims in respect of cigarette smoking can amount to abuse, within the meaning of section 4 of the Act. In any event, the father deposes that he has and will continue to endeavour not to smoke in enclosed areas in the children’s presence. In my view, the issue is one to do with the children’s health, and perhaps reflects the level of insight into the responsibilities of being a parent, rather than one relevant to potential abuse.
The issue of cannabis is more complex. Cannabis is illegal and the mother suggests that the father’s use of it has impacted upon his ability to parent the children competently. In addition, in spite of the father’s denial of using the drug, he has been charged with its possession. Against these factors is the fact that the mother was willing to agree to a shared care arrangement for the two children in early 2005, in spite of her claims that the father’s marijuana use has been chronic for a considerable period of time. In my view, this significantly diminishes the strength of the mother’s concerns and lends weight to the father’s submission that the mother’s complaints about him are opportunistic. In addition, the father is prepared to undergo routine urine analysis in an attempt to assuage some of the mother’s concerns.
The major component of the mother’s concerns seems to arise from her fear that the children have been and will continue to be exposed to pornography of the most graphic kind. The only evidence which supports the mother’s fears is what H has reportedly said about her father having “magazines with penises and vaginas in it” and her sexualised suggestions to R. It is not the case that Mr Campana has been charged with the possession of child pornography. It would be speculation on my part to assume that the current charge of attempting to pervert the course of justice relates to the possession of such material.
In any event, it is not my function to assess the guilt or innocence of the father. Rather, in the context of these proceedings, I must form some assessment of the risk of harm which is likely to befall these children, if they are exposed to their father. In particular, I must form some assessment of the probability of them being exposed to abuse, within the meaning of the legislation, if they spend extended periods of time with their father.
The complete definition of “abuse” in relation to a child, means:
“(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.”[10]
[10] See section 4(1) of the Family Law Act
The mother does not seem to suggest that the father or any one associated with the father has assaulted either H or R within the terms constituted by placita (a) above. Rather she seems to suggest that the father has involved the children in some form of sexual activity by exposing them to pornographic material.
Pornography is not homogeneous in its content. Some types of it are legally obtainable, other types are not and its possession is criminalised. At this stage of the proceedings, it is not possible for me to determine definitively whether the father has had in his possession pornography; what form that pornography has taken; and most importantly, whether either of the children has been exposed to it and whether that exposure has occurred deliberately or unwittingly and in what context, particularly whether in a context of the type outlined in s.4(b) above.
The leading authority in respect of the issue of sexual abuse involving children is the High Court decision of M & M.[11] In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is to “make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.” As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.” The court must bear in mind that proceedings in respect of care arrangements for children pursuant to the Family Law Act 1975 are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned. Nor, where there are allegations of sexual abuse, are they criminal proceedings.
[11] See M & M (1988) FLC 91-979
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental interaction. The High Court said as follows:
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[12]
[12] See M & M (supra) at page 77,081
In applying the test, the court is attempting to balance the potential positive and negative factors to a child of either allowing or disallowing contact, where an allegation of abuse has been raised, which cannot be definitively resolved. In conducting this balancing exercise, the best interests of the child concerned remain paramount. As the Full Court held in B and B:[13]
“The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.”
[13] B and B (1993) FLC 92-357 at 79,778
In Re: W(Sex abuse: standard of proof)[14] the Full Court of the Family Court directed that the termination of a “worthwhile relationship between the parent and child” concerned ought to be the last resort in cases involving allegations of possible sexual abuse, where the court was called upon to apply the unacceptable risk test. It is particularly difficult, at the interim stage, for a court to resolve definitively whether a child has or has not been exposed to abuse, given that a full examination of all the evidence, likely to be available at a later stage, has not occurred. In this case, Mr Holland, counsel for the mother, urges the court to be cautious and points to the fact that the police investigations regarding the father have not as yet been concluded. Obviously, this is the case, particularly in regards to suggestions in the press that Mr Campana’s computer is to be subject to further investigation.
[14] Re: W(Sex abuse: standard of proof) (2004) FLC 93-192 at 79, 217
In W & W [abuse allegations: unacceptable risk][15] the Full Court approved some comments of Fogarty J in N & S and the separate representative[16], which were to the effect that in applying the unacceptable risk test, it was the duty of judges to give real and substantial consideration to the facts of each case. It was said in that case that the expression was not a “magical provision”, but that in applying it, trial judges had to consider deeply the facts involved in coming to a conclusion that there was an unacceptable risk to a child, particularly what were likely to be the future effects on the child concerned of either making or failing to make such a finding.
[15] W & W [abuse allegations: unacceptable risk](2005) FamCA 892
[16] N & S and the separate representative (1996) FLC 92-655
In this case, it is clear to me that both H and R have a significant and meaningful relationship with their father. It is common ground between the parties that since their separation, now approaching three years ago, the children have spent frequent and lengthy periods of time in the father’s care. It cannot be doubted that the father has provided much of the care for these two children and they are accustomed to be in his presence. There is no compelling evidence to indicate that they have ever come to any harm, whilst in the father’s care. In my view, there is much substance to Mr Noble’s submission that H and R are likely to be perplexed that they have not spent any extended periods of time with their father since May of this year. In these circumstances, there is the possibility that their relationship with their father will become less meaningful, if this state of affairs is unduly prolonged.
Both parties are currently critical of the other’s ability to parent H and R competently. However, in assessing these concerns now, I think it apposite to note that they have each been content to allow the other to parent the child extensively, in a shared parenting arrangement, since shortly after they separated. In addition, as I have already indicated, there is no independent and cogent evidence to suggest that either of the children has ever suffered any significant degree of harm, whilst in the care of one or other of their parents.
One of the section 60CC(3) factors, to which I must have regard, is the limiting of future proceedings between the parties, if possible. I concede this is a peripheral issue in this case. However, it is the mother’s position that it would be preferable for the court to await the outcome of the subpoena, which she has caused to be issued to the New South Wales Police. If, as she fears, this results in it becoming apparent that the father has had in his possession child pornography, this she contends will have obvious implications for the outcome of these proceedings.
However, she has not formally sought to adjourn the proceedings and, for obvious reasons, the father pushes his application to be able to spend meaningful time with the children, within the parameters envisaged as optimal by the applicable legislation in the Family Law Act. In any event, regardless of the outcome of the subpoena, it is likely to remain unclear whether H and R have been actually exposed to any pornography and, if so, in what circumstances. It is also likely to be a matter of conjecture what the consequences are for the children of spending time with a person who has had such material in his possession.
Conclusions
I have endeavoured to consider the various applicable section 60CC factors in this case. It is now necessary to consider whether the presumption, arising from section 61DA, should be applied. The presumption is rebutted if there are reasonable grounds to believe that a parent has engaged in child abuse. In this case, I do not believe that such reasonable grounds exist to establish that the father has engaged in abuse of either H or R. The mother’s concerns are, in my view, lacking in a cogent nexus to the children themselves, to be regarded as providing such reasonable grounds.
Nor do I think, at this stage of the proceedings, that it can be defensively concluded that the application of the presumption would not be in the best interest of the children concerned. I reach this view because the parties themselves sought a shared care arrangement in respect of the children and this arrangement was subsequently ratified by a court of appropriate jurisdiction. This leaves the application of subsection (3) of section 61DA, which as I have already remarked, is very often pivotal in determining the application of the presumption, where the court finds it impossible to make definitive findings about disputed factual situations.
The discretion provided by section 61DA (3) is not to be exercised in a “broad exclusionary manner”. According to the Full Court in Goode, given the intention of the legislature regarding the desirability of both a child’s parents being as fully involved as possible in their child’s life, the discretion should only be utilised in circumstances where limited evidence may make either the application or the rebuttal of the presumption difficult. An interim hearing, where there are disputes between the parties about serious issues, is such a situation par excellence.
Appropriate is a synonym for suitable or proper. In this case, in determining whether it is appropriate or proper, for the presumption to be applied at the interim stage, it is in my view necessary to assess the gravamen of the mother’s concerns about the father and make some sort of assessment as to whether the father poses an unacceptable risk to the children concerned. I must not lose sight of the fact that there may very well be some innocent explanation for the comments H has made, which have allegedly come to the mother’s attention.
At this stage, there is no evidence to suggest that the father has abused either child within the meaning of abuse contained in section 4. The mother’s concerns about the father’s alleged pre-occupation with pornography apparently arose during the parties’ relationship with one another and is one which obviously pre-dated the orders of the Local Court at Bxxx made in February 2005.
The mother’s concerns seem to arise from her fear that the nature of the pornography the father utilises has changed and in some way the children have been exposed to it. In all the circumstances of this case, I do not believe that this risk is so serious or so unacceptable that it should result in the father’s access to these children being curtailed in the significant manner which the mother contends is required to serve their best interests. Accordingly, in this case, I believe that it is appropriate that an order be made that the parties have equal shared parental responsibility for H and R.
Having reached this conclusion, I am then required to consider whether it is likely to be in the children’s best interests and reasonably practicable for them to spend equal periods of time with both their parents. In assessing this issue, I must bear in mind the various section 60CC factors, particularly the primary considerations. Up until May of this year, H and R maintained a meaningful relationship with both their parents through a shared care regime. I note there is some dispute, particularly from the mother’s perspective, about whether such a regime was strictly adhered to. However, she has never sought to change this arrangement, until she learnt of the charges against the father.
Given the circumstances of this case, particularly the fact the father has been charged with a number of criminal offences, there must be some element of risk associated with the father spending any time with the children. The task for the court is to assess that risk, particularly whether it is an unacceptable one to take in the circumstances and inaugurate any necessary protective measures, which are proportionate to the degree of risk.
For reasons already provided, I am not persuaded that the degree of risk to H and R is so great that the father’s future interaction with them should be severely curtailed or that there should not be an order for equal shared parental responsibility. Given the significance of the relationship between the children and their father it is my view that an equal time arrangement is likely to be in their best interests.
The final issue is whether such an arrangement is likely to be reasonably practicable, within the terms of section 65DAA(5). The parties live in close proximity in Bxxx. Since February of 2005, they have demonstrated an ability to make a shared care arrangement work. At this juncture, there is nothing to indicate that such an arrangement has had detrimental consequences for either of the children concerned.
The fundamental question, for the court, is whether the parties’ current level of antipathy and suspicion for one another, as manifest in these vitriolic proceedings, is such that a shared care arrangement is likely to be unworkable in the future. It is a difficult question to answer. The mother is likely to view the father’s protestations of innocence about pornography with scepticism. The father believes the mother has utilised his current misfortunes with the police for her own strategic advantage. On any view, their relationship with one another is poor and likely to remain so.
The father’s hotel business has apparently been wound up. He is not currently working and is available to care for the children on a full-time basis. He continues to live in the flat, of which the mother is critical. In this regard, I note that this is the first time she has raised such criticisms, notwithstanding the father has frequently spent time with the children in it in the past. The father also asserts that H and R will be able to spend time with his sister and other family members, if the orders which he seeks are made. It is also his position that both children have expressed a strong view to spend more time with him. Clearly, I am not able to resolve this particular issue, at this stage of the proceedings.
Although the father has some criticisms of the mother, which I suspect arise because of her criticisms of him, he does not suggest anything other than that H and R should continue to spend significant periods of time in their mother’s care. The major practical difficulty which arises in this case is that the two children concerned will have to cope with the regular transition between two households, which are mutually antipathetic. For obvious reasons, these are not currently good indicators for the parties to have a cooperative parenting relationship with one another, particularly in the short term. Put simply, the parties do not trust one another. This is hardly surprising, given the father’s charges and what appeared in the local newspaper about him. However, these difficulties are likely to remain whether there is a shared care arrangement; a substantial and significant time arrangement; or some other arrangement.
Pursuant to the provisions of section 60CC(3)(c)(4), the court is required to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child concerned and the other of his or her parents. Accordingly, it seems clear that parents have a duty to encourage proper parental relationships, so far as their children are concerned. The father is somewhat critical of the mother in this regard. Again this is a situation which is unlikely to change in the short to medium term.
The mother does not suggest that the children are at such a risk of harm from the father that there should be no interaction at all between them and him. Her position is that the children will be sufficiently protected, if they do not spend time with him overnight or for any more than three hours at a time. For reasons already provided, I think this response is overly dramatic. The mother’s position seems to be informed by her view the father may be able to “keep it together” for such periods but not for any longer periods of time. Given the previous length of time during which the father has been involved in a shared care arrangement, for H and R, I am not presently persuaded that it would be appropriate for the court to accede to the mother’s position.
In all the circumstances of this case, I have come to the view that the desirability of both the children having a meaningful relationship with both their parents should be given pre-eminence in this case. This follows from my view that they should have equal shared parental responsibility for H and R. Although the mother is likely to have difficulty making the shared parenting regime work, at this stage, because of her hostility of the father I am not persuaded that an equal time arrangement is neither in the children’s best interests nor impracticable.
In terms of the mother’s concerns about the children being exposed to criminal activity, on the father’s part, I believe these concerns can be dealt with by regular drug screening tests. At this stage, the mother’s concerns about child pornography are unsubstantiated. It should be underlined to the father that it is not appropriate the children be exposed to any pornographic material, not even that which is legally available to adults. I acknowledge that if fresh charges arise against the father, it is likely that the mother will wish to re-agitate these issues, particularly depending upon the nature of any fresh charge. At this stage, I will await to see if and when this occurs.
At this point, I believe that it would be appropriate that the parties jointly commission a family assessment to examine the nature of the relationship between the children concerned and their parents. At this point, I propose fixing the parties competing applications for final hearing in the sittings of the court to Bxxx in November of this year. I trust that the assessment will be to hand by this time.
For all these reasons, the order of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Brown FM
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