Cashin and Cashin
[2013] FCCA 804
•15 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CASHIN & CASHIN | [2013] FCCA 804 |
| Catchwords: FAMILY LAW – Sole parental responsibility – meaningful relationship – drug use – family therapy – whether or not orders for time should be made. |
| Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA |
| Mazorski and Albright [2007] 37 Fam LR 518 McCall and Clark (2009) FLC 93-405 MRR and GR [2010] HCA 4 Farmer and Rogers [2010] FamCAFC 253 R & C [1993] FamCA 62 Waterford and Waterford [2013] FamCA 33 |
| Applicant: | MR CASHIN |
| Respondent: | MS CASHIN |
| File Number: | BRC 9734 of 2010 |
| Judgment of: | Judge Harland |
| Hearing dates: | 22 & 23 April 2013 |
| Date of Last Submission: | 23 April 2013 |
| Delivered at: | Darwin |
| Delivered on: | 15 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Journey Family Lawyers |
| Counsel for the Respondent: | Mr Andrew |
| Solicitors for the Respondent: | Porter Hulett Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Linklater-Steele |
| Solicitors for the Independent Children’s Lawyer: | DA Family Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the child X born on (omitted) 2003 live with the father.
That the father has sole parental responsibility for the child.
That the child spend time and communicate with the mother at all reasonable times in accordance with her wishes and the father shall do all acts and things necessary to facilitate this.
That the child spend time with her maternal half-siblings, B, A and C at times to be agreed between the mother and the father.
That the mother will be restrained from attending the visits referred to in order 5.
That within 7 days of the date of these orders the father shall arrange for the child to attend an appointment with Ms B and the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer explaining the orders to the child.
That after the appointment referred to in order 7 has taken place the Independent Children’s Lawyer is discharged.
That each of the parties is to keep the other informed of the other’s current postal address.
That the father shall send the mother the child’s school reports within 7 days of his receiving them.
That the mother shall be at liberty to send the child cards, letters and gifts every 4 months commencing from the date of these orders.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cashin & Cashin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9734 of 2010
| MR CASHIN |
Applicant
And
| MS CASHIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for X born (omitted) 2003, aged 10 years, which commenced when the father filed an urgent recovery application on 19 October 2010.
The father’s case
The father relied on documents 1-9 listed in his amended case outline.
The father seeks orders for X to live with him, sole parental responsibility and that X spend time with her mother in accordance with her wishes.
The father also seeks an injunction restraining the mother from attempting to spend time or communicate with X in any way including through third parties. Order 9 of the father’s proposed orders also seeks to restrict the mother to sending a present to the child for her birthday and Christmas with a card “that is to be limited in its content to expressing happy birthday and merry Christmas to the child and should the mother comply with such requirement then the Father is to provide the card and present to the child.” In my view this is unduly restrictive. Indeed X might wonder why her mother is not sending her a personal message with the cards and may see as a shallow gesture not knowing that her father has restricted her mother to only making those greetings. The father did not make any submissions about this order.
I am of the view that it is in X’s best interests that she be able to receive letters, cards and gifts from her mother 4 times a year. Even if X chooses not to open though she will know what her mother is thinking of her.
He also seeks an order for X to spend time with her half-siblings at time to be agreed. These visits are to be supervised by a third party and the mother is to be restrained from attending those visits.
The mother’s case
The mother seeks orders that would see X reintroduced to her, initially with the assistance of the family therapist. She would then have supervised time before moving to unsupervised time. In summary she seeks:
a)Equal shared parental responsibility;
b)An order for reportable counselling with Ms B which would include the reintroduction of the mother and X;
c)After a period of counselling for 4 months the mother would then by at liberty to spend supervised time with X at (omitted) Contact Centre;
d)After 2 supervised visits the counselling would continue;
e)After 8 months the mother would have unsupervised time which would gradually increase;
f)The mother also seeks an order that the monthly visits between X and her half-siblings continue;
g)The mother also sought a restraint on both parents using alcohol to excess and taking any illegal drugs in X’s presence.
There is no evidence that the father uses or has used drugs. Nor is there any evidence about either parent drinking to excess.
The mother prepared her material when she was not legally represented. Some of the annexures to her affidavits contained statements by other people. She did not rely on those annexures at the hearing. She also did not rely on the affidavit annexing a family report from other proceedings.
The Independent Children’s Lawyer’s case
The Independent Children’s Lawyer’s (“ICL”) position at trial was that X should remain living with her father and should spend time with her mother as agreed. The ICL acknowledged that X might not spend time with her mother at all.
The ICL also sought an order for X to spend time with her half-siblings once a month without the mother being present.
The ICL relied on the family report and two reports by the family therapist Ms B.
ICL’s position at trial was that X should remain living with her father and should spend time with her mother as agreed. The ICL acknowledged that X might not spend time with her mother at all.
In addition to the documents the parties have relied on, I have considered the exhibits tendered during the course of the hearing, the oral evidence, the case outlines and the written and oral submissions.
Background
X lives with her father and his wife Ms E and her half sister O who was born on (omitted) 2013.
The father was born on (omitted) 1975 and is 38 years old.
The mother was born on (omitted) 1978 and is 35 years old.
The father and mother met and started living together in 1998. They married on (omitted) 1999.
X was born on (omitted) 2003.
The mother and father separated on 12 July 2004.
Consent orders were made on 16 May 2005 with respect to X. These orders provide for a shared care arrangement. The arrangements were subject to the mother undergoing drug tests at various periods which were to continue until X turns 16. The father says the mother did not provide tests at the required intervals. The father says these arrangements were never put in place.
The father repartnered with Ms H. They have a child together D born on (omitted) 2005. They separated in 2008.
The father commenced a relationship with his current wife Ms E in (omitted) 2008. They started living together in (omitted) 2009. They married on (omitted) 2012. They have one child O born on (omitted) 2013.
The mother has also repartnered. She has been in a relationship with Mr B (“Mr B”) since 2005.
She has 4 children with him, B born (omitted) 2008, A born (omitted) 2009, C born (omitted) 2010 and V born (omitted) 2011. Tragically V died due to SIDS in (omitted) 2011.
Both the mother and her partner have had serious drug problems. Her partner also struggles with bipolar disorder. She says that currently he is not living with her and the children but they are still together. She says Mr B has had a particularly hard time dealing with V’s death.
The mother candidly admits that she has had serious drug problems in the past. She started using drugs before X was born. She had a serious drug problem when X was very young and X would have been exposed to that. The mother says she no longer has a drug problem. The father does not believe this.
X has not spent any time with her mother since November 2010.
The Court made orders returning X to her father’s care on 24 November 2010. The mother did not attend court on the next several occasions and did not comply with directions to file material.
On 5 November 2011 X was due to spend supervised time with the mother at the (omitted) Contact Centre. X was distressed and refused to go into the Centre. The father says the contact worker tried to encourage X to see her mother for between 30 and 45 minutes. No further visits at the Contact Centre took place.
Disputed facts
The father says he has always been X’s primary carer. The mother disputes this. In the circumstances of this case it does not much matter. I am satisfied that X had spent the majority of her time in her father’s care since the parties separated in July 2004.
The amount of time X has spent with her mother prior to the period her mother retained her is also in dispute. This does not need to be resolved because on everyone’s case X has not spent any time with her mother since she was returned to her father’s care in November 2010.
Significant events
There was a critical incident in May 2010 when the father and Ms E found drugs and cash in X’s school bag. The mother says this was (omitted) and her rent money for her mother. She says she put it in X’s school bag by mistake. The mother was careless.
Understandably the father was concerned that the mother was using drugs again and required her to undertake a drug test before allowing overnights to recommence. This was not an unreasonable response on his part given the history of the mother’s drug use. The father says the mother continued to have care of X before and after school but that she was unreliable and sometimes the school would ring him to collect X as the mother hadn’t. It is to the father’s credit that once he received the clear drug test result from the mother he allowed X to spend time with the mother.
In September 2010 the mother decided not to return X to her father’s care. There was a heated argument between the mother and father when the father discovered that the mother had let Ms H come into contact with X. The father admits he lost his temper and said things he regrets. The mother admits that her father ‘tormented Mr Cashin a bit’ calling him a ‘tough guy’. The behaviour of all the adults was unfortunate.
The father had to obtain a recovery order to have X returned to his care. X was in her mother’s care for about eight weeks.
The mother called the police after the father threatened to kill her. She recorded the conversation. It is not necessary to go into the details of the incident. A Protection Order was taken out against the father for two years from 28 September 2010.
The mother also kept X out of school for six weeks. This would have been unsettling for X and was not a responsible parenting decision. It only compounded the challenging circumstances X found herself in.
The Queensland Department of Child Safety carried out an investigation into the living arrangements at the mother’s and Mr B’s home. The investigation found that X was at risk of emotional harm due to neglect in the mother’s home. In part this assessment was based on disclosures X made to the Department. X made disclosures about drug use and drug paraphernalia. The Department was also of the view that the X had assumed a parental role, caring for the younger children and the mother and Mr B when they were drug affected. The Department formed the view that the children had also been left at home unsupervised. The Department wrote a letter to the father dated 16 December 2010. The Department was content for X to live with her father and have supervised time with her.
The Department took the mother’s and Mr B’s three children into care on 24 November 2010. The children stayed with the mother’s mother and her partner. The Department prepared a detailed report dated 17 December 2010 which is annexure MLC-3 of the affidavit of Ms C filed 17 December 2011. She was the father’s lawyer at the time. X was interviewed by the Department and made several disclosures including:
a)There was never enough food in the house;
b)Her mother and Mr B would sleep a lot during the day;
c)Her mother has ‘burns’, sores and scratches on her arms;
d)X has seen ‘little orange needles’ and sharp things at her mother’s home;
e)Her mother’s house was filthy.
The handwritten notes of the interview with X were tendered as part of exhibit ICL 2. The mother disputes some of X’s version of events
The Department worker says she observed track marks on the mother’s neck. The mother told the worker the marks were caused by a necklace. The worker also saw drug paraphernalia at the home and the home was in a filthy unfit state for children.
The mother disputes the Department’s report of the home visit. She suggests that the worker was a friend of the father’s family. She does not provide any basis for this and I do not accept this. There is no evidence to suggest that the Department’s report was biased against the mother or that she had any ulterior motive to file an inaccurate report. It is also consistent with X’s reports of what it was like in the mother’s household. I do not accept the mother’s version of events.
The mother’s drug use
The mother started using drugs before X was born and continued to use drugs afterwards. The father says the mother’s drug use was the cause of a lot of problems in their relationship. The father’s mother paid $3,700 for the mother to obtain a naltrexone implant. Drug addicts use naltrexone to help get off drugs.
The mother received a naltrexone implant which the father’s mother paid for in 2004. The mother admits that from X’s birth until she was 3 the mother had severe drug problems. She agrees that X has lived primarily with her father since separation. The consent orders made in 2005 dealt extensively with the mother’s drug use. She also admits that she has relapsed in the past.
It is clear from the mother’s own affidavit that drug addiction has been an ongoing issue for her and for Mr B. At paragraph 264 she refers to a period where she and Mr B relapsed and used drugs every day for two weeks shortly before they went to Perth to get implants. She also found out she was pregnant at the time. At paragraph 272 she says they hadn’t used since early 2007.
Subpoenaed records show that the mother’s partner Mr B has a long criminal record for drug offences and stealing. The drug offences date back to 2000. The most recent drug offence is recorded in 2007. The last offence was on 1 November 2010. The police printout was dated 15 December 2010.
The mother also had a police record for drug offences. Her police record printout was dated 15 December 2010. Her most recent drug offence was on 2 June 2010 for failing to properly dispose of a needle and syringe.
The mother and her partner voluntarily placed their three children with the maternal grandmother. The Department obtained a two year protection order for the children. The maternal grandmother told the Department that when she took the children the house was a pigsty with dirty nappies on the floor. B and C had been ill but her parents refused to get medical treatment for them. The Department found evidence of drug use and saw track marks and sores on both parents. The Department was also concerned about domestic violence between them. The mother told the Department that she had a further implant in May 2010 but was unable to provide the name of the doctor who performed the procedure or where the doctor practiced. The mother told the Department officer that the drug paraphernalia which was found in the home was left over from when she was using drugs. The officer expressed disbelief at this. It seems to me that the last thing a recovering drug addict would want to have visible in the home is drug paraphernalia. Given the presence of these materials, X’s reports and the mother’s police record indicates that the mother was using drugs around the time X was in her care in 2010. It is possible that Mr B was also using drugs at that time.
The Department returned the three children to the mother and Mr B’s care in June 2012 being satisfied that they had addressed their problems. On 16 October 2012, being satisfied that they were continuing to care well for their children, the Department successfully applied for the care order to be lifted.
It is to the mother’s credit that she has been able to turn things around. Both she and Mr B underwent random drug tests for the Department which were clear. They complied with the Department’s requirements and avoided relapse even after dealing with the tragic death of V. It is clear from the Department’s records that the Department is satisfied that the mother and Mr B have addressed the issues the Department identified as being of concern and is satisfied that they have protective measures in place.
There is no expert evidence addressing interpretation of the mother’s drug tests and the effects of (omitted). The legal representatives came to an agreement about the effects of (omitted) being as follows:
a)It is a medication approved for the treatment of opiate dependence;
b)It contains an active ingredient which works to reduce the symptoms of opiate dependence.
On that basis the mother did not seek to call the GP to give evidence. That was a sensible approach in the circumstances.
Exhibit M2 is the result of a hair follicle test taken in February 2012. The result shows that the mother was drug free for the past six months prior to the test.
The Father’s evidence
The father says that prior to the mother withholding X the mother was unreliable about spending time with X. In 2009 the mother was spending time with X before and after school. The parties do not agree about how often this occurred. The father says that in late October 2009 he started allowing the mother to have overnights with X on weekends.
The father says that after X came home in November 2010 after being with her mother for several weeks she was anxious and distressed. He arranged counselling for her. He reports that X refers to her mother as Ms Cashin or ‘you know who’ and not as ‘mum’.
The father gave evidence that up until 2010 he gave the mother extra time with X when she was doing well. The father is faced with a dilemma. X trusts him and becomes extremely stressed when her mother is even mentioned. Ms B confirms this. He feels that he cannot break that trust that X has in him by forcing her to see her mother. I accept that he is genuine in this. It is clear that he has quite rigid views and limitations. He has limited insight.
The father was cross-examined about his attitude towards X spending time with her mother. He conceded that as from November 2010 being the time of the family report and the time of the final hearing in April 2013 the father is still of the view that it is not in X’s best interests for her to spend time with her mother.
It was put to the father in cross-examination that he does not like the mother and is never going to encourage X to spend time with her mother. The father denies this. It is clear that the father has previously encouraged the relationship between the mother and X.
I formed the impression from the father’s evidence that whilst the father supports X having a relationship with her mother in theory he struggles to support it in practice. This is not a case where one parent has tried to alienate a child from the other parent. X has good reasons for feeling the way she does about her mother. On some level the mother accepts that this is the case but she is concerned that the father will not do anything to encourage her relationship with X.
The father was justifiably criticised for his comments to X about the maternal grandmother. X expressed a wish to see her maternal grandmother. After the father told her that her maternal grandmother has not helped to return her X changed her mind. This was raised in Ms B’s first report. X had not changed her mind by the second report. It is a great shame for X that she has lost this connection with her maternal family. The father agreed that in hindsight he should not have done this.
I do not accept that father has been actively poisoning X against her mother. The father does have limitations. It is clear that he has very firm views and at times he has not been protective enough of X and has chosen to tell her the ‘truth’.
The father’s mother Ms L swore two affidavits during the course of these proceedings in support of the father. She was not required for cross-examination. She says that between 2006 and 2010 the father regularly asked her to care for X during times the mother was supposed to look after her. She also observed a change in X after she was returned to her father in late 2010. She says X was anxious and clingy.
The mother’s evidence
The mother did not actively participate in the proceedings for many months. She did not file any material until she filed an affidavit of 4 March 2011. This was a long, discursive affidavit consisting of 513 paragraphs which contained much material which was not relevant to the issues before the Court. Much of the material focused on the mother’s and father’s relationship before X was born which was irrelevant.
The mother did not file a response until 5 May 2011. She sought a week about arrangement. This was inconsistent with her allegations about violence in the father’s home. The mother makes allegations of violence against the father which she says was present throughout their relationship. The mother raises her concerns about violence in the father’s home again in her affidavit filed on 2 April 2013. She says that X has witnessed violence in her father’s home but does not provide any detail. She also failed to provide any detail about X witnessing violence in her 2011 affidavits. She states that she is concerned that X’s incontinence is as a consequence of witnessing family violence. She does not allow for the fact that it could be as a result of the mother’s own conduct. This is one example of her lack of insight.
The mother started using drugs before X was born. She started using again after X was born. At paragraph 156 of her first affidavit she says “I am an awesome mother and while I hate myself for every day that I used while X was in my care I can say that I still always put her first.” She says this was the case whilst she was using heroin. This greatly underestimates the use of drugs has on a person’s capacity to react to things and care for others. Much of the mother’s affidavit contains statements about her thoughts and wishes rather than statements of facts. This is typical of an affidavit prepared by a litigant in person.
The mother says she withheld X because she was concerned about alleged violence occurring in the father’s home. She kept X out of school because she was concerned that the father would collect her from school. She claims that she was advised to let the father bring an urgent recovery application.
The proper course would have been for the mother to bring an application to the Court raising her concerns. The mother compounded her position by failing to participate in the Court proceedings for some months.
The mother did not bring any other witnesses to Court. Her mother and her partner Mr B were not called as witnesses. Although self-represented she would have been aware from affidavits she received from the father’s lawyers that it was possible to obtain affidavits from other people.
One of the issues in the case was whether the father’s orders in seeking that X spend time with her mother in accordance with her wishes really means that X will not spend time with the mother because X will never be able to tell her father that she wants to see her mother.
Since May 2012 she has been working in her father’s (omitted) business. She works 3 to 5 days a week.
The mother has worked hard to turn her life around. She is to be commended for this.
The mother was cross-examined about her attitude towards the father. She would not concede knowing that X is safe in her in father’s household.
She was also cross-examined about her relationship with Mr B. She revealed that Mr B has not been living with her since Christmas. She says he has had difficulty coping with the death of their son and he gets emotional. She says they are still committed to their relationship.
Mr B has a lengthy criminal record much of which relates to drugs as well as some stealing offences.
With respect to the period the mother withheld X she admits that X may have had trouble waking her on occasions but denies X ever having to get meals and look after her siblings inappropriately. She also says the children were never left at home alone. She can’t explain why X said those things. The mother accepts that Ms B was unable to put a timetable on when X might be ready to be reintroduced to her.
The mother was very clear in her evidence that she blames the father for a large part of X’s current distress.
The ICL suggested that the dispute which led to the mother withholding X was actually related to the mother bringing Ms H into contact with X where the mother had been previously involved in court proceedings where the father wanted to prevent Ms H from having any contact with X and not domestic violence allegations. The mother claims that X had been raising domestic violence concerns for the past few weeks. She did not report it to the Department of Child Safety.
The mother denies that X could have seen any needles in her house.
The mother agreed that the affidavit she prepared for trial on 2 April 2013 focused extensively on family violence. The mother raised concerns about the issue not being addressed in family therapy with Ms B.
The ICL cross-examined the mother about her change of position with respect to family violence. Even when preparing her April 2013 affidavit the mother placed a lot of emphasis on X being a risk in the father’s home. By the time of the hearing she had apologised to the father and Ms E during a joint meeting with Ms B and was saying at the hearing that it was none of her business.
The mother accepted that whilst Ms B hoped it might be possible to achieve a meeting between the mother and X this year there was no guarantee about that. The mother also accepted that whilst she thinks X’s fears are unreasonable she accepts they are genuine.
My view of the mother is that whilst she says the right things she does not take sufficient responsibility for her own actions as being the cause for the breakdown in her relationship with X.
Family Violence
The mother tendered several pages marked in the police records. These included entries dated 28 May 2009 and 5 July 2009. These entries do not assist her as their record shows the father as the aggrieved person and do not provide any details as to who the other person was involved. On another page there is a description on an incident on 5 July 2009 between the father and Ms H. The officer records that there is no evidence that domestic violence occurred.
The incident which is addressed in the records is the incident on 25 September 2010.
There are no entries since 25 September 2010 until 18 December 2012. It is appears from that entry that Ms H made a private application for a violence order protecting herself and D. No details are provided. The record does not indicate if any order was made or whether there was a contested hearing. I place no weight on this.
At paragraph 349 of her first affidavit the mother says that X told her that her father has choked Ms E. The mother said she was concerned and asked Ms E over the next day and spoke to her about that. She says that Ms E told her X was lying and X had choked D. She says at paragraph 353 that a couple of weeks later X said things were worse at home. She does not give any detail as to what she says X told her. Presumably these incidents took place before the incident where the mother left (omitted) and $700 cash in X’s school bag as she describes that incident at paragraphs 370 to 373.
There was insufficient evidence presented at the hearing for me to be able to make any findings about family violence.
This is not a case about unacceptable risk. There is no evidence that the mother has tried to contact X at school or any other location. Therefore it is not necessary to make an injunction preventing the mother from coming into contact with X.
I canvassed with the ICL whether or not the ICL would be willing to meet X with Ms B. The ICL is willing to do so. I think this is important because it means someone independent explains the orders to X. It avoids putting the father in the invidious position of trying to explain it to X.
Expert Evidence
Mr M prepared a family report in August 2011. It is unfortunate that he was not able to observe the mother with X. The father did not give his permission to do so. The father was adamant when being cross-examined about this that X had told him just before she went into the room that she did not want to see her mother. He said that he believed that X would be more honest with him than with Mr M. He saw it as an issue of losing X’s trust if he didn’t prevent her from seeing her mother. The father raised his concerns about X being exposed to her mother during the family report interviews in his affidavit sworn and filed on 2 August 2011. In part he says his concerns are based on what X’s psychologist Dr M told him about X not being ready to talk about her mother let alone see her.
Mr M was cross-examined. As he has not seen the parties since the interviews for his 2011 report, he was unable to comment on the current situation. He did state that it would be important for X to feel that she can trust her parents.
Mr M notes in his report his opinion that X’s “memory of her mother is not sullied by any direct abuse by her.” The father does not accept this. He also does not accept Mr M’s observations at the assessment. I have no doubt that the father does unconsciously influence X. It would be impossible for him not to. I find that the father lacks the insight to be aware of his influence. Being unaware of it means he cannot change it.
On 20 February 2012 the Court made orders for reportable family therapy. The father, Ms E and X attended the first therapy session on 5 June 2012. The family therapist Ms B prepared two reports and was cross-examined by the parties.
In her first report Ms B notes the sessions appear to have been positive from X’s comments and those of her father and Ms E and she noted that the father and Ms E have brought her to all the appointments “with a supportive, constructive attitude.”
Ms B also reports that the mother has enthusiastically participated and has attended all appointments punctually and reliably. It was clear to Ms B that the mother loves X and is yearning to spend time with her.
Ms B says that it is likely that X was frightened and distressed by her separation from her father and Ms E and being kept from school would have added to the uncertainty.
In her second report she sets out the mother’s impassioned views about the importance of her being a presence in X’s life. The mother told her that she believes the father is motivated to prevent X from having contact with her in retribution for her exposing his violence. There is no evidence to support the mother’s view.
She notes that the father’s view is that X was traumatised by her mother’s withholding her. He says since then X has been noticeably anxious about separations. X has expressed worry about the mother’s drug use to him and X has also described feeling that she had to take responsibility for caring for and protecting her siblings.
Ms B reports that the mother is extremely disappointed that the therapy has not resulted in her meeting with X. Ms B notes that the mother “is of the view that the complexities of this expressed by the therapist reflect the therapist’s mistaken belief that X’s father is faultless.” Ms B notes that the situation “seems complicated by the mother’s inability to place appropriate emphasis on her own contribution to X’s distress.” Ms B’s observations are insightful.
Ms B also notes in her second report that X has become increasingly avoidant about discussing her mother. X was very worried about returning to school at the beginning of this year when she realised that B would be attending school this year. She was worried that he might attend her school and her mother might take her again. This indicates that X’s concerns have not abated.
Ms B also noted that she has not seen any features or indications of violence in the relationship between the father and X in her interactions with them.
In the last section of the report Ms B captures the dilemma facing X and indeed the Court well with respect to the likely harm to X in the long term if she has no relationship with her mother but also the difficulties for X if she is forced to see her mother.
Ms B was cross-examined. She said that currently X is extremely distressed and tearful just at the mention of her mother. To place her in a position where she is forced to have contact with her mother would be “an intensely anxiety-provoking situation” for her. X may also be afraid that her father and Ms E would not support it. She may also lose trust in her father.
Insightfully, Ms B pointed out that X may not have voiced her protests at being withheld to her mother because many young children are keen to please their parents.
She also made it clear that X is acutely aware of her father’s views. Ms B’s impression of the father was that he genuinely had X’s best interests at heart and he wants to protect her from harm.
Application for interim orders to be made
At the commencement of the second day the mother made an application for interim rather than final orders to be made. The mother submitted that the state of the evidence as to when X is likely to be ready to see her mother is unsatisfactory and that the order the father is seeking is in effect of an order for no time which should only be made a matter of last resort. The mother referred to Farmer and Rogers [2010] FamCAFC 253 and in particular paragraphs 188 onwards. I have considered that case.
In my view this case needs to be finalised. The mother did not take up the opportunity to participate in the proceedings and be heard for many months. This is not a case where is it clear that interim orders will result in there being the potential for a different outcome in 12 months time. In fact the indicators are to the contrary. I find that it would be contrary to X’s best interests to continue the proceedings. It is clear from the evidence that X continues to experience significant stress and anxiety. Knowing that the proceedings have ended may give her some relief.
The mother also sought to adduce evidence from her GP, Dr H about her (omitted) use. It was not certain as to whether the GP would be available to give evidence and that would not be known until after 2pm on the second day which was also the last day scheduled for the hearing. The father and the ICL opposed the GP being called, it being available to the mother to put on medical evidence for several months. The mother was self-represented until a few days before the hearing. I indicated evidence restricted to (omitted) could be useful provided that the GP could be cross-examined by the other parties.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What is means in the individual cases is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarfiy what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: s60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33 Mazorski and Albright [2007] 37 Fam LR 518 and McCall and Clark (2009) FLC 93-405. In McCall and Clark the Full Court said:
10. It appears to us that there are three possible interpretations of s 60CC(2)(a):
a. one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b. a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
c. the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
12. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
13. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
14. In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
15. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
There are 13 additional considerations set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child from the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child's daily routine and on occasions and events that are of particular significance to the child and the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
These proceedings commenced before the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).
Application of the legal principles to the facts of this case
The Primary Considerations
There is no dispute that X enjoys a meaningful relationship with her father. Before November 2010 X also enjoyed a meaningful relationship with her mother. There is no meaningful relationship between X and her mother now. The best the court can do is to make orders which would create the environment for a meaningful relationship to develop. The court should only do this if it thinks it is in the best interests of the child to do so. The focus must be on what the benefit to the child would be in the circumstances of the particular case.
The evidence of Ms B and the father is clear that X becomes distressed at the mere mention of the mother. There is no evidence as to when or if this distress will abate. I find it would not be in X’s best interests to force her to come into contact with her mother as it would likely cause her further distress which would not be of benefit to her.
The ICL submitted that it is clear from the evidence that there is currently no meaningful relationship between the mother and X and that looking at it prospectively there is unlikely to be one in the future.
The mother holds out hope of the relationship developing but the weight of the evidence goes against that. There has been no change in the father’s attitude. The ICL puts it well saying that it is “simply beyond his resources. He has not a situation where he’s acting capriciously, but it is simply not within his resources as a parent or a person at the moment to overcome what, in his mind, is a significant breach of trust in circumstances where that trust was very fragile to start with.”
I accept the ICL’s submissions on this point. It was clear during the father’s evidence that he lacks insight but I accept he is doing what he thinks is in X’s best interests and he has good reason to be concerned.
There is evidence that X has been subjected to psychological harm and neglect whilst in the mother’s care during the 8 week period in 2010. There is no evidence that X has been subjected to physical or psychological harm whilst in the father’s care.
I do not accept the mother’s submission that the X is living in a toxic environment. The mother urges me to find that a significant part of X’s anxiety is due to the negative messages she receives from her father and Ms E. There is no doubt that X is acutely aware of her father’s views but I do not think the evidence goes so far as to enable me to find that the major source of X’s anxiety is her father and Ms E. This ignores the fact that X has legitimate reasons of her own for not wanting to see her mother which is based on her own experiences of the time her mother withheld her and which is reported in a Department of Child Safety interview with X which took place on 6 December 2012. As mentioned previously the handwritten notes of the interview form part of Exhibit ICL 2. This interview is consistent with the things X has told her father and Ms E and Ms B. X has no reason to lie about her experience. X’s concerns are also consistent with the observations of the Department of Child Safety Officer who inspected the mother’s home and made a report. The mother complains about this officer and denies the officer’s version of events. However the mother’s explanations were unsatisfactory and lacked credibility.
Counsel for the mother pointed to the quote from Ms B’s report that “X has been increasingly avoidant of any discussion which involves her mother or maternal family” as being further evidence of the pressure X is being placed under by her father. I disagree as it could indicate a number of things including that X does not want to talk about her mother and her family anymore. It does not necessarily follow that this is because of her father.
Relevant Additional Considerations
The Child’s views
This consideration is set out in section 60CC(3)(a) as follows:
“(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;”
X has clearly expressed her views through family therapy. Currently she has difficulty even speaking about her mother. She does not want to see her. This is not a case of a child acting unreasonably or capriciously. She bases her views on her own experiences. I give this factor weight.
Ms B was asked whether X would be able to express a view about wanting to see her mother. Ms B said that in the presence of the ongoing conflict it would be hard for her to know in her own mind. This is challenging for X but it is an end to the litigation and will hopefully lift some of the burden from X. Ms B was clear in her evidence that whilst X is influenced by her father (as any child is by their parents) is that X has her own set of fears.
Child’s Relationship with Significant Persons
This consideration is set out in section 60CC(3)(b) as follows:
“(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);”
X enjoys a close relationship with her father and Ms E. She has no relationship at all with the mother or her maternal grandmother. Ms B said during her cross-examination that there may have been elements of strong contact with her mother in the past but that it was ambivalent and insecure. As Ms B says the mother may have valuable things to offer X but X needs the opportunity to settle and feel secure. Ms B is unable to put a time frame on when this may occur. I am going to make an order that the ICL sees X with Ms B to explain the orders to her. I hope that X may feel some sense of relief that the proceedings are finished and that she will not be forced to see her mother. I anticipate that the ICL and Ms B will make it clear to X that if she decides in the future that she wants to see her mother she should tell her father and he will make arrangements.
Her relationship with her half-siblings B, A and C is a tenuous one. She has seen them for limited periods once a month for an hour at a park on 13 February 2013, 27 March 2013 and 8 May 2013. Whilst there was some evidence that X enjoys seeing her siblings there was also evidence that these visits can be awkward for all of them. It will be easier to arrange times for the siblings to spend time with one another once they are older. Last year there were a couple of visits supervised by the Department of Child Safety.
X was more positive about her visits with her siblings in Ms B’s first report than her second report. In the second report she said that the visits have been “ok---sometimes boring and a bit weird.”
Ms B notes in her second report that it is unlikely that the contact between X and her half-siblings will be likely to be able to continue successfully with the involvement of the mother’s sister. X has expressed discomfort about seeing her.
I am loathe to make an order that may not be able to be complied with. In the circumstances I propose to make an order that the time between X and her siblings take place as agreed. I am aware that this may mean it does not happen but the current arrangement does not appear to be working.
Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in section 60CC and also sections (4) and (4A). I consider, under this heading, the following paragraphs of section 60CC(3):
“(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;
…
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
Section 60CC(4) and (4A) provide as follows:
“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
I accept that the father has encouraged and facilitated X’s relationship in the past. He demonstrated this after he found (omitted) in X’s school bag. In the context of the mother’s long-term serious drug problem his response was appropriate. I accept that before the mother withheld X, the father encouraged the mother’s relationship with X even though the mother has at times been unreliable. I accept the father’s and his mother’s evidence that this has been the case.
I accept that X has been and continues to be significantly traumatised by her mother withholding her. The fact that she appears to be more rather than less traumatised after more than two years cannot be attributed to the father negatively influencing her.
Effect of Any Changes in the Child’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
“(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
The orders I will make will maintain X’s current living arrangements.
Family Violence
I have already considered and made findings about family violence earlier in the judgment. In submissions I note the mother’s counsel asked me to make no finding with respect to family violence.
Orders that are least likely to result in further Litigation
The mother’s proposal would be more likely to lead to further litigation. The Mother’s proposal is not supported by the evidence. It is understandable why the mother seeks orders with a definite timetable for spending time with X. The difficulty is that her proposal may well force X to see her mother before she is ready. This would further harm X and would also be likely to harm X’s relationship with her father.
Conclusion
The ICL was against any other for the family therapy to continue. The ICL mentioned possible systems abuse in terms of forcing X to go when there is no real support from the father. The issue which I must be concerned about is whether or not making an order to continue the therapy is going to be in X’s best interests.
It is also clear as the ICL says that the mother still has an underlying belief that X is living in a violent household with her father and Ms E. The ICL submitted that the father would take little comfort in this and there would be a pressure on the dynamics of the counselling.
I formed the view hearing the mother’s evidence that she did not understand the process of family therapy. She wants to see a result and that’s understandable but the difficulty is that the important issue is working to X’s timeline, not anyone else’s. The evidence is clear that, for whatever reason, X’s distress has increased not decreased.
To some extent the mother says the right things but there is some doubt as to how much she truly takes responsibility for her part in the current situation. There are limits on the mother’s capacity and insight. It is clear that mother places a lot of blame on the father and expresses some concern about Ms B. Ms B certainly expresses concerns in her two reports that the mother has not taken full responsibility for her actions.
Both parents demonstrated a lack of insight. The parties have been entrenched for the past two years. Neither appreciates that children will not always say directly what they are feeling and that children are eager to please their parents.
The mother did not present evidence from her partner Mr B or any other witness in support of her case. The nature of the mother’s home environment is not transparent. It is not as significant as it could have been because of the orders I am going to make. It is however a significant gap in the mother’s case.
During submissions the mother’s counsel referred to R & C [1993] FamCA 62 and argued that there is no evidence in this case sufficient to reach the conclusion which was reached in that case. R & C was an entirely different type of case. It has no application here.
He also urged the court not to draw any negative inference with respect to the mother not producing any drug tests in 2013 in circumstances where she was unrepresented and there was no order or request from a party that she do so. I do not draw any such inference.
The mother has to accept reality and that is that X is distressed at the mere mention of her.
Counsel for the father submitted that the father should not be criticised for being irritated with the mother against the background of what the mother described herself as being her extreme drug addiction.
Both parents showed a lack of insight. This places limitations on what can realistically be expected of them. For example if the father lacks insight into how his views influence X he is not going to be able to change that. It is also important to remember that the father’s views and X’s anxiety is based in reality. They are a reasonable reaction to the mother’s conduct. The mother minimises this and prefers to blame the father.
The father’s counsel urged me to grant the injunction the father seeks with respect to the mother. The father did not seek orders with respect to continuing the family therapy but was prepared to give an undertaking that he do so.
I am persuaded by the ICL’s submissions that to order the family therapy on a final basis would be counter-productive. It is a different matter when there are interim orders made as the issue will be examined by the court at a later stage. If the family therapy continues it will be because the parties think it will be beneficial for X. It may also benefit X to know that she can decide whether she wants to keep going or not. That might be empowering for X.
One of the difficult issues, particularly for the mother is that there is a limit to what the court orders can fix.
Injunctions
The father seeks injunctions restraining the mother from making any contact with X. There is no evidence that the mother has made any attempt to contact X since X was returned to her father’s care. There is no bases for such an order to be made.
Costs
The father’s counsel indicated that his client would like the opportunity to make an application for costs after the judgment is delivered. In his minute of orders the father seeks an order for indemnity costs. I note that indemnity costs are only granted in rare cases. The usual rule is that the parties pay their own costs. If the father is so advised he may file an application for costs in accordance with the rules.
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 one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 15 July 2013
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