Charles and Charles
[2017] FCCA 1595
•24 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLES & CHARLES | [2017] FCCA 1595 |
| Catchwords: FAMILY LAW – Interim parenting – Father and child in NSW – where Mother in Western Australia – where serious concerns about the Mother’s mental capacity to care for the child – where financial circumstances of the parents considered in deciding contact and communication arrangements. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR CHARLES |
| Respondent: | MS CHARLES |
| File Number: | WOC 78 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 21 June 2017 |
| Date of Last Submission: | 13 July 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 24 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | DGB Lawyers |
| Solicitors for the Respondent: | Tindall Gask Bentley Lawyers |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Father to have sole parental responsibility for the child X born (omitted) 2015 (the child).
The Father must (if reasonably practicable) consult with the Mother and then inform the Mother of any major decision he makes in relation to the welfare of the child.
The child lives with the Father.
The child will spend time with the Mother in accordance with orders to be submitted by the parties by no later than 21 August 2017, which implement the Court’s intentions as reflected in these reasons for Judgment.
The matter be adjourned to 6 November 2017 at 9:30am for Mention.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Charles & Charles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 78 of 2017
| MR CHARLES |
Applicant
And
| MS CHARLES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born (omitted) 2015. X is currently 18 months old. The Applicant is his Father. He is 23 years old, lives in the (omitted) region of New South Wales and describes himself as a homemaker. X's Mother is the Respondent. She is 23 years old and lives in (omitted), Western Australia. She describes herself as being unemployed.
X currently lives with his Father in the (omitted). The Court must decide where he should live in the future, and how much time he should spend with the parent with whom he is not living.
Background
Even though this is an interim hearing, there was an extensive amount of independent background material available about the parents and X.
In 2006, when the Mother was 16 years old, she formed a relationship with Mr B. A child, A, was born to that relationship on (omitted) 2008. The Mother wasn’t able to care for A, so his care was assumed by the Maternal Grandmother. A has lived with his Maternal Grandmother since then.
On (omitted) 2009, the Mother was tragically involved in a car accident and suffered a serious brain injury. She was in hospital for many months. The business records available to the Court create the strong impression that the Mother’s life even before this accident was a tumultuous one, which included attempts at self-harm and drug and alcohol use. There is some suggestion in the material produced to the Court that the Mother was under the influence of drugs at the time of the accident. In any event, she recovered $2.6 million in compensation as a result of the accident, receiving it in 2013. These funds are administered for her by a corporate trustee based in Perth.
The Mother and Father in this case met in Western Australia in (omitted) 2014, commenced a relationship in (omitted), and physically moved in together in December that year. During the relationship the Father asserts that he assumed a caring role for the Mother, given the injuries she suffered in her car accident. There is a dispute between the parents about the nature and extent of the care provided to the Mother by the Father, indeed the nature and extent of the care that she in fact required.
In 2015, there were family law proceedings in Western Australia in relation to A, which involved the Mother and the Maternal Grandparents. The Mother appears to have discontinued her involvement in that litigation.
On 15 August 2015, the parents married, and the Father asserts that he ceased working outside of the home in order to assume responsibility for the Mother’s full-time care. X was born in (omitted) 2015.
In January 2016, the independent documents produced to the Court indicate that the Mother assaulted the Father by punching him in the face. There was a further argument with Police on a later occasion. On both these occasions the police issued the Mother with a notice.
In February 2016, the Father asserts that the parents agreed to move to New South Wales in order to be closer to the paternal family for support. The Mother contends that they travelled to New South Wales for a holiday. It is not possible for the Court to make findings, at an interim hearing, about precisely why the parents decided to move to New South Wales in March 2016. As it turns out, nothing turns on this issue for present purposes.
In March 2016, they moved into rental accommodation in (omitted), and the Father commenced an (omitted) degree at the University of (omitted), attending a few days a week, a few hours each day.
In September 2016, the documents suggest that the Mother once again assaulted the Father, but this time whilst he was holding X. A provisional Apprehended Domestic Violence Order (AVO) was made for the Father and the child’s protection. In addition, the Mother was charged with common assault. The provisional AVO became an interim AVO, and then a final AVO by November 2016, again, for the protection of the Father and the child.
The violence in September 2016 appears to have precipitated, or was otherwise a major cause for, the parties’ final separation. By September 2016 the Mother’s criminal charges resulted in a conviction and sentence pursuant to a 12 month bond. During the course of the Mother’s criminal proceedings she obtained reports to assist her from a psychiatrist in New South Wales. Dr J’s report will be discussed in due course.
It is common ground that towards the end of 2016, probably October, the Mother returned to (omitted) in Western Australia from (omitted), without X or the Father.
By December 2016, the Father commenced a relationship with his current partner, Ms J. The Father, in fact, commenced the present proceedings in January 2017 and, indeed, the Mother did not file her response until May. The Court notes the chronology of these events with interest – even though the Mother returned to Western Australia in October, she took no steps to initiate these proceedings and, indeed, was a respondent to it.
In May 2017 X, whilst in his Father’s care, had an accident that required his hospital admission.
The Mother’s communication with X after she moved back to Western Australia was limited. Certainly by June she was having FaceTime communication with X, but this was occasionally problematic, according to the Father.
It is appropriate to deal with the issues of the Mother’s health, specifically her mental health, at this juncture of the reasons. The evidence in this regard is uncontested. The Court observes that it is unusual, but indeed very welcome, to have such good quality evidence about the mental health of a parent at an interim hearing.
Dr J was a psychiatrist involved with the Mother in 2016 for the purposes of her criminal proceedings following the assault on the Father. Her records were before the Court. The Mother was represented in the criminal proceedings in question. In a letter from her own solicitors to Dr J, her lawyers described the Mother as having been involved in challenging social circumstances, was abusing drugs, and had an unplanned pregnancy. All of this occurred before the traumatic brain injury that she suffered in the motor vehicle accident. Dr J’s records indicate that the Mother suffers from short-term memory, which has led to difficulties in being medication compliant. The working diagnosis formed was of cognitive disorder secondary to an extremely severe traumatic brain injury, personality disorder secondary to a traumatic brain injury and a generalised anxiety disorder. The Mother was described as suffering with difficulties as regards her emotional control, behavioural regulation and anxiety disorder. This meant that she had difficulty with controlling her emotions, problem-solving, planning, and being able to regulate her behaviour at times of acute heightened emotional arousal.
One of the letters from the Mother’s treating doctors, Dr O, to one of the Mother’s lawyers, dated 9 April 2013, described the Mother as being “a 12 year old girl in an adult woman’s body”, who required 24 hour supervision.
Dr J produced notes of her consultation with the Mother, in which it appears the Mother disclosed that she was using heroin at the time of the motor vehicle accident, and used cannabis from year 8. Many of the other medical records produced to the Court (which were extremely voluminous) do create the impression that after cohabitation the Mother did rely on the Father to provide her with support. There are numerous references to the Mother’s erratic behaviour, and emotional dysregulation.
In her case, the Mother relied on a report from a clinical psychologist, Mr D. His affidavit, affirmed 19 June 2017, was found by the Court to be refreshingly candid for a treating psychologist, and indeed of great assistance to the Court. Mr D began working with the Mother about seven years ago. When asked for his observations about the Mother’s intelligence, psychological functioning, capacity for reasonable judgments, and of her insights into her needs and any limitations, he explained that the Mother’s challenges were located in her ability to regulate her emotions and make sound decisions of a long-term nature. He referred to the Mother’s problematic, volatile childhood, which pre-existed the brain damage that she suffered in the motor vehicle accident. He described the Mother as struggling to be collaborative, even with those whose role was to assist her. She struggled to trust people and was learning how to engage with people in a pro-social functional way that works.
Mr D was asked to comment on the Mother’s parenting capacity. He explained that when the Mother feels controlled or has determined that her view is correct, she has a difficulty seeing another’s point of view. She has a tendency to think in black and white terms. He explained that the greatest challenge to the Mother would be having access to a support system she trusts and can rely on when in complex emotional contexts. She would need to be able to accept feedback about how to parent, or at least how to consider her parenting strategies. Currently, he explained, the Mother tends to get defensive, and this makes it difficult to have her reflect on whether her decisions are based on an analysis of the situation, or her anger at a person or belief she has about the current situation.
He believed that the Mother would be well motivated as a parent but given her impulsive history and difficulties in being collaborative due to becoming fixated on the view and being defensive, the concern will be that she will lose sight of the larger picture of parenting and make decisions that are not well considered.
In relation to X, Mr D thought that the Mother’s current emotional complexity and difficulties in managing the current conflict with the Father means it would be difficult for him to draw conclusions about how she would function in a direct parenting context. She clearly does not trust the Father, something that she had expressed to him. It would not, therefore, be her first choice to seek to have the Father play a large role in X’s life. In addition, he explained that given the Mother’s emotional states are expressed quite openly, X would be well aware of her negativity about the Father.
This is a very sad case. The Mother’s past and present life difficulties compound the sadness, and complexity. One must wonder, however, why the Mother proceeded with her interim application in circumstances when even her own treating psychologist raised concerns about the Mother’s parenting capacity?
The competing proposals
The Father sought an order for sole parental responsibility that X live with him, and have FaceTime communication with the Mother each Monday, Wednesday and Sunday. He sought a number of relatively non-contentious ancillary orders.
It is noticeable that the Father made no proposal for the Mother to spend time with X. This was, of course, highly problematic from X’s perspective and, indeed, the Court’s perspective. As the Father’s solicitor explained in submissions, however, the Father was not in a position to return to Western Australia given his support system in the (omitted), and he could not afford the cost of travelling from the east coast of Australia to the west coast, and return.
The Mother’s proposal was that X be returned to the Mother’s care in (omitted). She also sought for the proceedings to be transferred to the Family Court of Western Australia. If the Court were to order that X continue to live with the Father, but in Western Australia, then she sought an order that he live no more than 15 minutes away from her home and that there be a gradually increase in spends time with order that would result in equal time between the parents. Should the Father choose to remain in New South Wales, however, then X would live with his Mother spend time with his Father by arrangement between the parents when he visited (omitted). The Mother made no proposal for contact with her, should X continue to live with his Father in New South Wales.
The Court notes that even the Mother’s proposal is problematic in terms of how and when X would spend time with his Father. This merely recognises the complexity of this family’s situation. Inherent in the Mother’s proposal for equal time, however, was a recognition of the fact she had no concerns about his parenting capacity. To the extent that the Mother was seeking an order that the Father be coercively relocated to (omitted) from (omitted), even her Counsel quite frankly conceded that that was not likely to happen on an interim basis. Indeed, that is the case and the argument was put with minimal enthusiasm and maximum circumspection. Nothing more will be said about this aspect of the matter.
X was represented by a very experienced Independent Children’s Lawyer, Mr Williamson. The Independent Children’s Lawyer proposed that X continue to live with his Father, indeed, that his Father should have sole parental responsibility. The Independent Children’s Lawyer acknowledged the challenges associated with ordering X to spend time with his Mother given the formidable practical and logistical challenges associated with this.
The interim hearing took place on 21 June 2017. During the course of submissions, the Court made it clear to the parties that it needed to know more of the financial circumstances of both parents so that the Court may better make a decision about how X should spend time with each parent, irrespective of where he lives. An Order was made that each parent file and serve within 14 days a statement of financial circumstances. Those documents were filed, and are considered below.
The material relied on
The Father relied on the following documents:
a)Initiating Application filed 25 January 2017;
b)Affidavit of Mr Charles filed on 25 January 2017;
c)Notice of Risk filed on 25 January 2017;
d)Affidavit of Mr Charles filed on 19 June 2017; and
e)Financial Statement of Mr Charles filed 10 July 2017.
The Mother relied on the following documents:
a)Amended Response filed 3 May 2017;
b)Notice of Risk filed 3 May 2017;
c)Affidavit of Ms Charles filed 3 May 2017;
d)Affidavit of Mr H filed 13 June 2017;
e)Affidavit of Ms Charles filed 16 June 2017;
f)Affidavit of Mr D filed 19 June 2017; and
g)Financial Statement of Ms Charles filed 13 July 2017.
The following documents came into evidence as exhibits of the Court:
| Exhibit No. | Description of Exhibit/MFI |
| A1 | Documents produced by NSW Police |
| A2 | Documents produced by WA Police |
| A3 | Page 66/146 of Report by WA Department Child Protection and Family Support |
| A4 | Documents produced by Dr P |
| A5 | Documents produced by (omitted) Health Group (F8, F14 particularly) |
| R1 | Documents from Sydney Children’s Hospital |
The applicable law
The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:
(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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the Court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the Court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. 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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
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.
Meaningful relationship
There is no question in this case that it would be very much in X’s interest to have a meaningful relationship with both of his parents. In all likelihood he has a meaningful relationship with his Father, who has been his principal carer since October 2016. Indeed, for the last nine months X has known no other parent but his Father. The limited communication that has taken place since then might, minimally, sustain the relationship that exists with his Mother. One of the greatest challenges in this case is a developmental one – X is only 18 months old, and for almost half of his life he hasn’t seen his Mother.
Whilst it is far from clear, should X return to his Mother’s care the Court would be concerned about adjustment difficulties, even putting aside issues about the Mother’s parenting capacity. One of the great unanswered questions in this case is why the Mother did nothing from October 2016 until she filed her response in these proceedings? No explanation is offered in her evidence. Even when the Court pointedly asked her Counsel that question, no useful answer could be provided. Nonetheless, at least in an aspirational sense, there is a benefit to X of having a meaningful relationship with both parents. This will be very hard to achieve due to the constraints of parental capacity, and distance that exist in this case.
Protecting X from harm
With great respect to the Mother, and even to those representing her, the objective evidence before the Court about the Mother’s mental health gives rise to quite overwhelming concerns about X’s safety in her care. The evidence suggests that she has been violent towards the Father, on several occasions, and at least once in the presence of X. The evidence suggests that her mental health has a profound potential impact on her capacity to provide for X’s physical and emotional needs.
The Independent Children’s Lawyer submitted that a child of X’s age would, in all likelihood, present challenges in terms of his parenting. This, he submitted, would test the patience of any parent, let alone one like the Mother who struggles with the adversities that life has thrown at her. The Mother may well have been the primary carer for X before separation, and she probably was at least an equal carer for him before separation, but the fact remains that before separation the Father was there to assist her and, at least according to him, to manage her emotional dysregulation when it affected X.
The Court is able to safely conclude, even on the limited evidence before it, that there is a risk of harm to X in his Mother’s care. The Mother’s own medical evidence gives rise to this concern. That evidence gives rise to further concerns about her ability to get on with those who are there to support her in parenting. It is no answer, therefore, to say that these risks are managed by returning X to the Mother’s care, and ensuring that she is medication-compliant, and works with those who are there to assist her. The Mother’s history from the records of those who are there to assist her suggest that there are times when she dysregulates, distances herself from her support services, indeed even turns on them sometimes quite viciously.
Nonetheless, it needs to be stated that the Court does have some concerns about risks of harm, and parenting capacity, in the Father’s household. The focus is not so much on the accident that X suffered whilst in the Father’s care, as potentially serious as it was, but rather on the bizarre evidence the Father leads about the nature of his relationship with his partner, and where, in fact, he and X are living. The Court is left with a strong sense that it does not have the full picture about the constitution of the Father’s household, and even where he actually lives. Whilst these matters do give rise to concerns, the concerns are not nearly as grave, or as clear-cut, as those pertaining to the Mother.
The Mother’s proposal is clearly the one that exposes X to harm considerations.
Other considerations
At an interim level, this case is largely decided by reference to the need to protect X from harm. Other considerations are relevant, but not determinative. Of concern to the Court is the probability that X’s relationship with his Mother is a tenuous one because of her limited contact and communication with him since she returned to (omitted). That is a matter that needs to be managed by a careful reintegration of the Mother into his life, in conditions that are safe, suitable and comfortable to him. This may well mean a gradual reintroduction of the Mother into X’s life.
The arrangement that will expose X to the least change is clearly keeping him where he is, in his Father’s care.
The significant obstacles of distance and cost of travel present formidable issues of practical difficulty and expense. The financial statements filed by the parties indicate that at least for the purposes of an interim hearing, the Mother’s financial capacity to fund or contribute to the costs of travel is significantly greater than that of the Father.
The issues of parental capacity have already been foreshadowed in these reasons. The concerns about the Father appear to be both quantitatively and qualitatively less, and thus more easily managed. At a final hearing, it would be useful to have more evidence from the Father, as well as perhaps some clarify, about where exactly he is living, and to find out more about his partner and her family.
Even at this very preliminary stage of these proceedings, there are indications that the Mother has been violent towards the Father. The impression created is that this is linked to the mental health challenges that she experiences.
Parental responsibility
Even at an interim level, there is enough material for the Court for it to conclude that the statutory presumption has been rebutted, and it is in any event not in X’s best interests for there to be equal shared parental responsibility. The Mother has been violent towards the Father. The Mother experiences serious mental health issues. They do not communicate. She does not trust him. They live on opposite sides of the country. Both the Father, and Independent Children’s Lawyer, proposed sole parental responsibility.
On behalf of the Mother, Mr Othen, her Counsel, strongly submitted that the Court needed to be very careful indeed before giving sole parental responsibility to the Father in circumstances where the evidence suggests that since separation, he has been far less than diligent in keeping the Mother appraised of developments in X’s life (including, for example, his accident and subsequent hospitalisation), and in circumstances where he could have done far more to initiate communication between the Mother and child. Counsel also suggested that the Father had demonstrated himself to be untrustworthy in circumstances where there was no transparency about where he was living with X, and the precise nature of his relationship at the moment.
It seems to the Court that Counsel’s submissions will have far greater weight at a final hearing when all of the matters that he adverts to, as well as any other matters can be explored in much greater detail, and with the benefit of more time. Sole parental responsibility is warranted as a matter of law, but even as a practical matter the Father needs to be able to make decisions about X in circumstances where the Mother is so far away, and their relationship is so dysfunctional. The obligation will be placed on him to both consult, and notify in relation to X, and that is a better way of managing what at least the Mother perceives to have been his past failures. An order for sole parental responsibility is warranted.
What contact and communication between X and his Mother?
The strong impression created from the Financial Statements sworn by the parties is that the Mother is in a much stronger position than the Father. She is the sole beneficiary of a Trust which owns assets to the value of $2.5million and which can be used for expenses including travel. This must have an influence on the proportion in which the cost of travel is borne by the parties. It has been suggested that the Mother would find it difficult to travel to New South Wales, even though she has done so in the past. Doing the best the Court can in circumstances where it accepts that the distances between the respective homes are vast, and the cost of travel and consequentially accommodation is significant, the Court believes that, on an interim basis, X should be spending time with his Mother monthly, alternating between Western Australia and New South Wales, with the cost to be borne primarily by the Mother. This Order will need to be revisited at a final hearing where the financial impact of the costs of travel on the Mother’s Trust will need to be carefully considered.
Orders
X should live with the Father who should also have sole parental responsibility, subject to an obligation to inform the Mother and keep her informed about matters relating to X’s health. In the unusual circumstances of this case other than stating that the Court believes that X should be spending time with his Mother each month alternating between Western Australia and New South Wales and further specifying that it should not be overnight time, the Court believes that the parties, assisted by the Independent Children’s Lawyer, are best placed to propose orders that implement the Court’s intentions as reflected in these reasons.
This is a matter that needs expert evidence and the Independent Children’s Lawyer is urged to commence the process of engaging one, in consultation with the parents. The Court will do everything it can to expedite an early final hearing once the expert evidence is in train.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 24 July 2017
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Family Law
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