Chatelet and Chatelet
[2009] FamCA 765
•25 August 2009
FAMILY COURT OF AUSTRALIA
| CHATELET & CHATELET | [2009] FamCA 765 |
| FAMILY LAW - CHILDREN - Magellan - allegations of physical and verbal abuse - substantiated - older children resistant to relationship - acceptability of risk if spend time with younger children - ongoing supervision ordered - review in year |
| Family Law Act 1975 (Cth) ss 4(1), 60B(1), 60CC(1), (3), (4) and (4A), 61DA, 65DAA(1) and (2), 65L, 74, 75(2), 75(3) Evidence Act 1995 (Cth), s 140 Child Support (Assessment) Act 1989 |
| Hemiro & Sinla [2009] FamCA 181 Bevan & Bevan (1995) FLC 92-600 Mitchell & Mitchell (1995) FLC 92-601 |
| FATHER: | Mr Chatelet |
| MOTHER: | Ms Chatelet |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 7091 | of | 2008 |
| DATE DELIVERED: | 25 August, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 3, 4, 5 and 6 August, 2009 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Crozier-Durham |
| SOLICITOR FOR THE FATHER: | McCracken & McCracken |
| COUNSEL FOR THE MOTHER: | Mr. Howe |
| SOLICITOR FOR THE MOTHER: | Moores Legal Pty. Ltd. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr. Grigg |
| INDEPENDENT CHILDREN’S LAWYER | Perry Weston |
Orders
That all previous parenting orders and injunctions which relate to the children of the marriage A born … September, 1993, B born … December, 1994, C born … July, 1996, D born … August, 2000, E born … November, 2002, F born … February, 2005 and G born … August, 2007 (“the children”) be discharged.
That the mother and father have equal shared parental responsibility for the children.
That the children live with the father.
That A, B and C spend such time and have such communication with the mother as is agreed between each of them and the mother.
That until 25 August, 2010 F and G spend time and communicate with the mother as follows :
(a)on each Monday, Wednesday and Thursday from 1:00 pm. until 5:00 pm.;
(b)on each Tuesday and Friday from 3:30 pm. until 6:30 pm.;
(c)on each Sunday from 11:00 am. to 5:00 pm.;
(d)on Christmas Eve from 11:00 am. to 5:00 pm. in 2009 and each alternate year thereafter;
(e)on Christmas Day from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(f)on Good Friday from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(g)on Easter Sunday from 11:00 am. to 5:00 pm. in 2011 and each alternate year thereafter;
(h)on the birthdays of D, E, F and G at times to be agreed, and failing agreement:
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. until 6:30 pm.;
(i)on the mother’s birthday at times to be agreed and, failing agreement :
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. to 6:30 pm.; and
(j)at such other times as are agreed.
That until 25 August, 2010 D and E spend time and communicate with the mother as follows :
(a)on each Monday, Wednesday and Thursday :
(i)if a school day from the conclusion of school until 5:00 pm; and
(ii)if not a school day, from 1:00 pm. until 5:00 pm.;
(b)on each Tuesday and Friday from 3:30 pm. until 6:30 pm.;
(c)on each Sunday from 11:00 am. to 5:00 pm.;
(d)on Christmas Eve from 11:00 am. to 5:00 pm. in 2009 and each alternate year thereafter;
(e)on Christmas Day from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(f)on Good Friday from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(g)on Easter Sunday from 11:00 am. to 5:00 pm. in 2011 and each alternate year thereafter;
(h)on the birthdays of D, E, F and G at times to be agreed, and failing agreement:
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. until 6:30 pm.;
(i)on the mother’s birthday at times to be agreed and, failing agreement :
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. to 6:30 pm.; and
(j)at such other times as are agreed.
That as from 25 August, 2010 the mother spend such time with D, E, F and G :
(a)as is agreed between the parties; and
(b)on terms and conditions as agreed between the parties, PROVIDED THAT they shall not be more onerous (on the mother) than those contained in paragraphs (10) and (11) hereof.
That the mother and father have liberty to apply in the event the parties are unable to agree on :
(a)the time the mother is to spend with D, E, F and G after 25 August, 2010; or
(b)the terms and conditions (if any) which are to apply during such time;
and if the mother does so apply, she have leave to reinstate her applications to spend unsupervised time with D, E, F and G and her application for their residence.
That D, E, F and G communicate with the mother :
(a)by telephone between 7:00 pm. and 7:30 pm. on each day, the telephone call to be initiated by the father; and
(b)as otherwise agreed.
That the mother’s time with the children pursuant to paragraphs (5) and (6) hereof be supervised for a period of six months from this date by one of the following people :
(a)Ms BT;
(b)Ms CN;
(c)Ms AS;
(d)Ms DO;
(e)Ms HU;
(f)Mr HU;
(g)Ms ME;
(h)Ms OO; or
(i)such other person as is agreed between the parties.
That commencing on 25 February, 2010 :
(a)Ms BT or another person agreed between the parties be in substantial attendance during each period of the mother’s time with D, E, F and G; or
(b)in the event Ms BT is unavailable and the parties are unable to agree on another person, the mother’s time with D, E, F and G be supervised by another of the people referred to in paragraph (10) hereof.
That notwithstanding the provisions of paragraphs (10) and (11) hereof, the mother and father may, at any time, agree that a period of the mother’s time with D, E, F and G or any of them be unsupervised or that Ms BT or other agreed person not be in substantial attendance.
That subject to any agreement to the contrary between the parties and the person supervising a period of time, or being in substantial attendance during a period of time, D, E, F and G shall be collected from either their home or from school (where applicable) and returned to their home.
That subject to any agreement to the contrary between the parties, the times in paragraphs (5) and (6) hereof be suspended :
(a)in the second week of each school term holiday period; and
(b)from 26 December to 15 January in each year.
That each of the parties keep the other advised of his/her residential address and telephone number.
That the mother be and is hereby restrained from applying any form of corporal punishment to the children or any of them.
That the mother and the father by themselves, their servants and agents be and are hereby restrained from :
(a)denigrating the other or allowing any other person to denigrate the other in the presence or hearing of the children; and
(b)discussing the litigation or allowing any other person to discuss the litigation in the presence or hearing of the children, save that the father be at liberty to advise the children of the effect of the orders made herein.
That each of the parties advise the other forthwith in the event a child suffers a significant accident or illness whilst in his or her care and authorise the other to discuss the child’s injury or illness, treatment and prognosis with each treating professional.
That the consent of each of the parties be required :
(a)to the enrolment of F and G in a school; and
(b)to any change of enrolment (of school or kindergarten) for any of the children.
That the mother be at liberty to receive (at her expense, if any) a copy of :
(a)each kindergarten or school report for D, E, F and G;
(b)each kindergarten or school photo of D, E, F and G;
(c)school publications routinely provided to parents in respect of D, E F and G;
and as soon as practicable the mother serve a sealed copy of this order on the principal of each school or kindergarten attended by a child and it shall be sufficient authority to the principal to provide the items described.
That the mother may consult with school or kindergarten principal and teachers in respect of D, E, F and G’s educational progress and development PROVIDED THAT :
(a)an appointment shall be made for each interview; and
(b)such appointment not be made for a time when it is reasonably foreseeable that A, B or C could be at the school, kindergarten or other place where such interview is to occur.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”) :
(a)compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court; and
(b)the nominated family consultant give the parties such assistance as is reasonable requested in relation to compliance with, and the carrying out of the parenting orders;
and that such supervision be reportable in the event :
(c)another application is filed pursuant to the Act; and
(d)the judicial officer before whom it is listed requests such a report.
That if consistent with her commitments and availability IT IS REQUESTED that Ms. W be the nominated family consultant.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal.
That the father pay for the maintenance of the mother the sum of $75 per week, in monthly instalments of $325, the first of such payments to be made on 1 September, 2009, and monthly thereafter, into a bank account to be nominated by the mother in writing.
That the maintenance to be paid pursuant to paragraph (25) hereof be varied on 1 October in each year (“the review date”) commencing on 1 October, 2010 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Melbourne (All Groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ended on the day twelve months prior to the review date, namely 31 September, 2009; and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.
That this order as to variation in accordance with the Consumer Price Index is without prejudice to the right of the parties in any year to make such application as he/she may be advised for any other variation of the maintenance which he/she may claim to be appropriate by reason of his/her then prevailing financial circumstances.
That maintenance be paid to the mother pursuant to paragraphs (25) and (26) hereof until the first of the following:
(a)25 August, 2019;
(b)the mother obtains fulltime employment which is maintained for a month; or
(c)the mother obtains and maintains for a month any employment in respect of which she is paid no less than a sum equivalent to $750 per week (having regard to CPI increases between this date and the relevant date).
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Chatelet & Chatelet is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7091 of 2008
| MR CHATELET |
Husband
And
| MS CHATELET |
Wife
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The parties began living together in 1986 when the father was eighteen and the mother was twenty-one. They married in January 1989 and separated in May 2008. In the course of their marriage the mother bore seven children, from fifteen pregnancies. A will be sixteen in September, B is fourteen and a half, C is thirteen, D is nine, E will be seven in November, F is three and a half and G is two.
ALLEGATIONS OF ABUSE OF THE CHILDREN
The father’s evidence is that on 1 June, 2008, a few days after the parties’ separation and the mother’s departure from the family home, the three older children told him that they and the younger children had been physically, verbally and emotionally abused by their mother for years.
The children told their father of their alleged abuse after he suggested that it might be better if he left the family home and their mother returned to care for them.
The children’s disclosures led to DHS involvement and the filing of proceedings in the Federal Magistrates’ Court on 5 August, 2008 by the mother. A previous notification to DHS in June 2005 alleged the mother screamed at and smacked the children, was not coping with the children’s care or maintenance of the family home, and may have been affected by post-natal depression. DHS made “an appropriate referral” and closed the case.
The father’s evidence was that prior to separation he had been unaware of the significant abuse described by the children but was aware of the “harsh and dismissive” tone of the mother’s dealings with the children, which he had tried “to correct”. He knew of the incident to which the mother deposed, when another parent reported her to the school for hitting E in 2004, but took issue with her account in the affidavit. He knew from the children of an incident at McDonalds where it was said she had behaved in an erratic and violent manner; the children’s account was different to that set out in her own affidavit. He knew of DHS involvement arising from that incident, but only from her, and believed that Anglicare had “sent [Ms KJ]” to work with her. He knew of A’s allegation that the mother had chased him with a knife when he was 14 (thus after September 2007) but had accepted her explanation which, set out in her affidavit, was that A had been rude, disobedient and antagonising and, frustrated and without thinking, she walked around the kitchen bench with the knife still in her hand, which she had been using to cut vegetables. He also knew from the children of an incident at McDonalds where it was said she had behaved in an erratic and violent manner; the children’s account was different to that set out in her own affidavit.
Prior to the final separation there had been at least one earlier separation, when the mother left the home in November 2003 after she threatened to kill A when she discovered he had left the freezer door open. She did not deny using the words, or being angry about the wasted food, but denied she was uncontrolled, and attributed problems at that time to the father’s unreasonable expectations and demands.
It is probable the father did tell the mother on a number of occasions she would have to leave the home if she did not modify her behaviour and he agreed that it was at his insistence she left on 26 May, 2008. It is clear there had been much tension and discord in the home in the years prior to separation; the absence of that tension and discord was remarked upon by a number of the children when they spoke to Ms. W.
ORDERS SOUGHT
Until the trial commenced, each of the parties sought residence of all of the children. A family consultant prepared two reports, the second of which is dated 30 June, 2009. Despite a reported concession to the family reporter that it would not be feasible to seek residence of the oldest two children, the mother filed an amended application on 13 July, 2009 in which she maintained her application for their residence, as well as the residence of the five younger children. She also sought spousal maintenance of $300 per week.
At the commencement of the trial counsel for the mother advised that the mother would be seeking interim orders providing for her to spend unsupervised time with the four youngest children, with no overnight periods, for a period of about twelve months. Asked in the witness box where she saw the case going, if such orders were made, the mother said she would be seeking shared residence of the four younger children (that is, the children spending alternate weeks with each parent) but that there would need to be some overnight time first. It was her case that A, B and C were old enough to choose with whom they lived and the time they spent with the parent with whom they did not live and the court should not impose orders on them.
Counsel for the mother tendered as M1 a minute of the unsupervised time the mother sought to spend with the children pending a further hearing in some twelve months time. This included no overnight time.
In broad terms the father sought a continuation of the current arrangement, pursuant to which all seven children live with him and the mother spends time with the four youngest children on a number of days in each week, supervised. The detail of the orders sought by him is set out in the case summary filed on his behalf on 30 July, 2009. He advanced no proposal for the commencement of unsupervised time, or any overnight time.
At the commencement of the trial counsel for the ICL expressed a preliminary view that the ICL would support the orders sought by the mother; it was put that if all went well, it would be appropriate for the four younger children to spend much more time with her. In final submissions a modified proposal was advanced, contained in exhibit ICL1. Counsel submitted that any time the mother spent with F and G alone (that is, absent older siblings) should be supervised for six months. Time with D and E, or time with all four children, should be unsupervised from the outset. The ICL also proposed the mother engage in counselling, the father attend family therapy, the mother be restrained from applying any form of corporal punishment and the parties be restrained from discussing the case and denigrating the other party in the presence or hearing of the children.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
In Hemiro & Sinla [2009] FamCA 181 I summarised the principles referable to determination of an application which involves an allegation of sexual abuse. The allegations in this case are of physical and emotional abuse of all seven children; some of the behaviour alleged could constitute the criminal offence of assault. Broadly, the same considerations apply whether a court is assessing risk referable to alleged sexual abuse or alleged physical, verbal and emotional abuse.
When considering the allegations of abuse, the court must determine whether there is an unacceptable risk that the children will be harmed, physically or emotionally, if their time with their mother is unsupervised. The standard of proof is that set out in s.140 of the Evidence Act 1995 (Cth), pursuant to which the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. As provided in s.140(2), and without limiting the matters which the court may take into account in deciding whether it is so satisfied, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(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.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The mother relied on an affidavit and financial statement filed by her on 13 July, 2009 and affidavits of two friends (Ms ME and Ms OO) filed 17 July, 2009 and 15 July, 2009 respectively. The mother, Ms. ME and Ms. OO were all cross examined.
The father relied on affidavits filed by him on 12 August, 2008, 10 July, 2009 and 24 July, 2009 and a financial statement filed on 20 July, 2009. He also relied on an affidavit of his sister, MOA, and an affidavit of COA, filed on 24 July, 2009. Ms. COA is the sister of the father’s brother-in-law; the father’s sister, MOA, is married to COA’s brother, LOA.
The independent children’s lawyer relied on an affidavit of Mr LR, psychologist, who saw the child A; his report is dated 5 December, 2008. He also relied on two reports prepared by a family consultant, Ms W, dated 8 December, 2008 and 30 June, 2009; a DHS report dated 9 October, 2008; and three affidavits sworn by Dr. KN filed, respectively, on 24 March, 2009, 27 April, 2009 and 30 June, 2009. Ms. W and Dr. KN were cross-examined. No-one sought to cross-examine Mr. LR or the worker who prepared the DHS report.
Parties
The mother retained her composure but was obviously stressed. She did her best to respond directly to questions. Her animosity to the father was generally contained but spilt over on occasions; the tone of her affidavit evidence is probably a better indicator of her real opinion of him. I must find that she still appears to simplify the reasons the children no longer live with her and what may be necessary to overcome this.
The mother told Ms. W in June 2009 that her parenting had been based on “control and fear”, by which she meant the father’s control of her and her fear of the father. She was reluctant to admit responsibility for even the few parental lapses she conceded. The account contained in her affidavit sworn on 13 July, 2009, some thirteen days after the release of Ms. W’s second report, makes no concessions; in it, she raises a litany of complaints about the father and his conduct, before and after separation, and denies any inappropriate verbal or physical interactions with the children.
Dr. KN prepared a second report about the mother after reading the DHS report and Ms. W’s first report. In that report he modified the opinion expressed in his first report and said that if the court substantiated the allegations, he would have to find the mother “completely lacks insight” into the impact of her behaviour on the children. He expressed the opinion that, without counselling from a psychiatrist or psychologist, it is likely the mother will remain convinced that the father has brainwashed the children to make untrue allegations.
Whilst I am satisfied that the mother did her best to tell the truth, I have significant reservations about her capacity to acknowledge behaviour directed by her at the children prior to separation. Absent that acknowledgement, the court must have some reservations about her capacity not to repeat it, particularly when stressed. The court must also consider whether the removal of major stressors which operated prior to separation lessen that potential.
The father’s presentation was very different to that of the mother. Giving evidence he appeared confident, measured and sometimes pedantic. He was candid about leaving many decisions to the children, including whether they talk to their mother on the phone when she rings, and he made no attempt to dissemble or disguise his lack of trust in the mother and his conviction that her continuing denial of past abuse undermines her rhetoric of change and capacity to parent differently in the future.
Dr. KN reported that he had some vague concerns about the father which he could not elaborate, contenting himself with describing him, amongst other things, as a tense individual with a rigid temperament and as a little bit self-righteous.
What is clear is that this was a marriage of very different people. The mother was probably as dependent as Dr. KN surmised and the father as inflexible. As Dr. KN noted, opposites often attract and often such personalities complement each other. Relationships built on that attraction can “remain on track for years”. If the assertive party moves to wanting control over “all events in the household”, the marital relationship may be destabilised. It is probable the mother grew to experience the father as controlling and to perceive his demands as unreasonable; his motive for the preparation of the spread sheets tendered as M2 may have been to assist her to maintain an organised household but is indicative of unrealistically high expectations and little insight into the probable response of a recipient.
Each of the parties is now very critical of the other. Neither is psychiatrically unwell however their temperaments and personalities remain very different. That may have affected their parenting styles. The role of the court is not to make judgments based simply on their respective personality traits but to assess the evidence, including evidence of past and current parenting, and focus on the best interests of the children.
Mrs. ME
Mrs. ME was a candid and talkative witness, a friend of the mother for some eleven years and with five children of her own. She impressed as honest. Her affidavit evidence needs to be considered in the light of her oral evidence.
Cross-examined Mrs. ME spoke of the mother yelling at the children and of her view, based on personal experience (her own husband used to yell at their children, but no longer does so) that this was not necessarily detrimental to children in the long term. She said she did not know the father very well and that he had always been very pleasant to her; it was clear that she was reporting complaints made by the mother when she was critical of him in her affidavit. She volunteered that at times she observed the father being very helpful in the household but at other times he “appeared plastic”. Asked what she meant by this, she said he was polite but was not as emotional as some people, including her.
The flavour of Mrs. ME’s oral evidence of observations of the mother with the children during the marriage can be gauged from her evidence that “there was a period of time when she didn’t yell at the kids when they were getting into the van at school”; that is, the exception was not yelling, rather than yelling. Her evidence was of the children being very obedient and getting into the car very quickly when they were yelled at, which could be indicative of very obedient children (although one might then wonder at the need for yelling) or indicative of fear of the consequences of not obeying. Mrs. ME’s evidence was that the mother’s yelling was “louder than I liked, as a parent” but was “not generally out of control”; she once heard the mother yelling at A (some time between 2004 and 2006) and thought “if she doesn’t change her tone of voice, he will get angry”.
Mrs. ME has only seen the mother with the children twice since the parties’ separation in May 2009; both times were in the 2008/2009 summer holiday period.
Ms. OO
Ms. OO is also a friend of the mother. I have less confidence in her candour than that of Mrs. ME and she gave a much stronger sense of advocacy on behalf of the mother. Like Mrs. ME, she has only seen the mother with the children twice since separation and on those occasions she was supervising her time with them, pursuant to court orders. Both were this year. Like Mrs. ME, her evidence of the mother’s problems with the father were based on conversations with the mother, not on observations. Similarly, her accounts of telephone conversations were based on reports from the mother, as were her opinions about A’s motives and actions.
Ms. OO’s evidence was that the mother’s conduct was always appropriate, “given the extreme pressure she was under”.
Although in her affidavit Ms. OO deposed to the mother babysitting her own children (now 12 and 7) it transpired that that has not occurred over the “last couple of years”. Her explanations, relating to geographical distance and having “made other arrangements” were not compelling. On Ms. OO’s account, the mother did not raise her voice to the children on the two occasions she saw her with them this year. She did not attribute this to any change in the mother but to the fact the children were “not being their normal selves” and not engaging “in as much disruptive behaviour as in the past”. She was thus not in a position to make any comment about the mother’s potential response to the children now if they were to revert to their previously disruptive behaviour.
Ms. MOA
Ms. MOA was an impressive witness. She supervised the mother’s time with the children once, at her brother’s request. Her evidence was of observations of verbally aggressive behaviour by the mother and, on at least one occasion, verbal abuse of B, and of E telling her in January this year that “mummy hit [G] once with a wooden spoon”. Ms. MOA was even-handed, deposing to many instances when the mother was affectionate towards the children, particularly when they were young, and to the children’s enthusiasm for a swimming outing with their mother in January this year. I accept her evidence of observations during the marriage.
Ms. COA
Ms. COA was not challenged save as to her evidence of observing the mother yelling at E when he was three, of him shrinking from her, and of the mother smacking him five or six times on the bottom. I accept her account and place weight on her evidence.
Ms. W
Ms. W’s evidence was insightful, balanced and cogent and I place weight on it. Much of the cross-examination of her went to the necessity (or not) for supervision and she succinctly summed up the issue when she said the primary issue was whether the children would be safe in their mother’s care. She did not doubt the children would be loved and cared for to the best of the mother’s abilities; the questions the court needed to determine were how much the mother can tolerate, how far has she moved and, if the children are difficult, will they be safe?
Dr. KN
Dr. KN’s evidence was thoughtful and considered and I place weight on it. Dr. KN has never met any of the children and stressed the importance of the determination of factual issues in dispute and the court’s access to a much larger body of evidence than that available to him.
CONTACT SINCE SEPARATION
All of the mother’s time with the children since separation has been supervised and it is clear that, from the day the parties separated, the father determined the time she could have with them. This was probably a continuation of their pre-separation roles; he was calm and in control, she was stressed and reduced to supplication. That said, I am satisfied he was concerned about her presentation and response to the children in the days leading up to separation and felt they needed the security of his presence, even prior to their disclosures of abuse.
On 12 December, 2008 interim orders were made, pursuant to which the children live with the father. Orders provided for the mother to spend periods of time with F and G on every day save Saturday, and by telephone. C, D and E were to spend time with her on Tuesday, Friday and Sunday, during periods when the younger children were also present, and have telephone contact. All the time was to be supervised by one of five named people or other person as agreed. The list included Ms. OO and Mrs. ME, and Ms BT, the nanny the father employed after separation who works for the family for ten hours on Monday to Thursday.
At present the mother’s time with the four younger children is structured around the availability of supervisors and the periods the children spend, respectively, at school and crèche. She spends time with F and G from 1:30 pm. until 4:30 or 5:00 pm. on Monday, Wednesday and Thursday, and D and E are with them from the time they are collected from school until all four children return to their father’s home. F and G are in crèche during the afternoon on Friday and the mother spends time with them at crèche; this is an additional period to that provided in the orders.
Orders provide for all of the children to be with the mother from 3:00 pm. to 7:00 pm. on Tuesdays and Fridays. When the mother had difficulty finding a supervisor on Tuesday, the nanny employed by the father stepped in and generally supervises from 3:00 pm. until 6:30 pm., 6:30 pm. being the conclusion of her working day. This arrangement could not be made on a Friday so the mother has not been seeing the children then. She asked for the Wednesday time to be extended, a request not agreed to by the father.
There have also been problems with finding supervisors on Sunday, which means the mother’s time with the four younger children has been arranged on an ad hoc basis. On some occasions she has not seen them at all, on others for as little as two hours, and sometimes for up to five hours or more.
C has spent time with the mother but for some time has not been a regular participant in the structured regime.
A number of people have supervised, including Ms. ME and Ms. OO, the father’s sister and the mother’s parents. In recent times it has been Ms. BT, the nanny employed by the father, who has done the bulk of the supervision; she generally spends time with the mother and children on Monday, Tuesday, Wednesday and Thursday. Although the mother was swift to allege the father did nothing to facilitate her time with the children, the reality is that Ms. BT is paid by him to undertake childcare and housekeeping, and when she is with the mother and children she is not at her principal place of work and unable to juggle the two tasks, as a parent would. I do not find constraints such as an earlier conclusion to accommodate the nanny’s working hours and other obligations unreasonable. Ms. BT is employed for ten hours a day, on four days a week. She must be at the children’s home at 8:30 am., to enable the father to leave for work, and a 6:30 pm. finish is the maximum possible, both financially (for the father) and in terms of Ms. BT’s working day. Ms. BT does not drive.
Financial circumstances
The father is an executive in the financial industry, on a package of some $191,000. He has negotiated an eight hour working day in the office, travels for two hours, and works about another four hours a day from home, at night.
The father spends $911 per week on child care. The nanny is paid $763 (which includes 9% superannuation) and childcare is $148. Despite earlier advice to the contrary, he has discovered he is not eligible for the 50% childcare rebate. The nanny’s rate of $17.50 per hour plus 9% superannuation is considerably lower than the rates paid by others of whom he has made enquiry, and a nanny agency quoted him some $29 per hour.
The mother is employed by a company which does cleaning, and has been working for two and a half hours per day, for $220 per week. Her hours are about to increase to three hours per day; she will work from 8:30 am. to 11:30 am., for about $30 per week more. She is paid $17.65 per hour. She is in receipt of the Newstart allowance and is assessed to pay the minimum child support for the children.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests 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.
These are consistent with the objects set out in s.60B(1).
Family violence is defined in s.4(1) of the Act to mean conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety. Abuse is defined (excluding definitions referable to sexual assault) as an assault of the child which is an offence under a law in force in the State or Territory in which the act constituting the assault occurs.
To Ms. W the mother said that she had allowed her fear of the father and his unreasonable demands for perfect parenting and housekeeping to impact on her parenting. Cross-examined she conceded some injudicious parenting decisions but denied all allegations of significant physical violence alleged by the children, and the nature and extent of the verbal abuse alleged. In her affidavit of evidence in chief, sworn after receipt of Ms. W’s second report, she deposed to not believing that her behaviour :
. . . is any different to that of a parent who has seven children to care for as well as running a home. I have a very close relationship with my children although I am aware that in recent times, [A] has not wanted to spend time with me. I believe that this is due to the influence of his father.
Asked about the incident when another parent reported her to the school in 2004 and either a customer or staff at McDonalds made a notification to DHS in 2005, the mother described her interactions with the children and over-reactions by those observing her. If events had occurred on either occasion as the mother deposed, it would be astonishing for a third party to have intervened as they did. On her account, on the first occasion she smacked E once on the leg when he kicked her in the stomach (she was pregnant) when she was getting him into or out of her car at the children’s school. On the second occasion she had a minor altercation with a McDonalds customer who had complained that E was too noisy and the customer hit E (intentionally or inadvertently) with his laptop case.
Cross-examined the mother admitted the following incidents :
· She smacked A once, about 18 months or two years ago, when he was very rude to her. He had called her a bitch and said if she yelled at him or hit him his father would make her leave. She admitted she may have lost her temper with A a couple of times.
· She smacked D once on the bottom in a shopping centre.
· She smacked E once on the leg when he was 18 months old and kicked her in the stomach when she was pregnant; this was the incident that gave rise to the report to the school.
To these could be added her account of walking around the bench towards A after he had been very rude to her, while co-incidentally holding a knife.
The mother’s evidence was that she has never smacked F or G. Asked about B she said there were times she probably came across as harsh, because she was under pressure.
The allegations made by the children are of far more significant and more frequent aggressive and violent behaviour directed at them. A told Ms. W that he was terrified of his mother at times and that D was her greatest victim; he said D was constantly scared to the extent he would flinch when his mother walked past. A told Ms. W he had been hit by the mother with a wooden spoon until it broke when he was about nine, and had been hit with a frozen chicken and a frozen casserole. His account was of her coming at him with a knife in the kitchen in a threatening way.
B told Ms. W that she was angry that her mother was lying about her violence and was very worried about her younger siblings, who she saw as unsafe unless another adult was present. She said she herself had felt unsafe but was most worried about D, who – in her view – bore the brunt of her mother’s anger. C told Ms. W of her fear and that she had been smacked on the face, legs and hands. D spoke to Ms. W of his mother hurting his body and his feelings.
All five older children spoke individually and together about various incidents where their mother had frightened them by hitting, verbally abusing or threatening them. This included hitting F and G.
Ms. W’s evidence was that in thirty years of professional work she has not seen children, separately, who were so consistently concerned with safety issues. She did not believe they “overstated” the physical abuse.
In Ms. W’s opinion the children’s disclosures are genuine and are the product of their life experiences. In reaching that conclusion she took into account the content of the allegations, the children’s affect and the whole family context of which she was aware. It remains her view that the children’s fears of their mother are genuinely felt and rationally based. She was confident in expressing the opinion that the children were fearful of their mother at times, despite the mother still questioning that assessment.
Ms. W spoke of the potential for cumulative verbal abuse – and its emotional consequences – to be as traumatic for a child as one incident of physical abuse. The older children spoke of verbal abuse which belittled, insulted and derided them.
Pursuant to a court order A saw Mr LR in December 2008. He told Mr. LR that he did not think he had liked his mother since he was about seven; she wasn’t like his friends’ mothers, didn’t “have any real time or care for me” and used to hit him. He said it got worse; she was angry and when he tried to talk to her, she said there was nothing wrong and blamed it on his father. He spoke of her being moody and “losing it”, at being “gutted” when she hit him three times with a wooden spoon which broke, when he was about nine, and of her chasing him with a knife, after which she alleged he had threatened her and sent him to the police station.
On 5 September, 2008 the father filed a form 4 notice in which he alleged child abuse and family violence and the risk of both in the future. In the notice the father alleged that on 1 June, 2008 A disclosed that his mother had assaulted and physically abused him. Amongst the behaviour alleged were the following :
· the mother came at him with a knife in 2008 in the kitchen;
· the mother struck him with a wooden spoon causing it to break when the family lived at P (between December 2000 and March 2004);
· the mother threw a frozen chicken at him which struck him upon the back of the head, and a casserole at him which hit him in the back, both when the family lived at V (between March 2004 and October 2006);
· the mother frequently hit A until she left the family home on 26 May, 2008 and he had learned to defend himself by using his left arm to ward off blows;
· A alleged the mother was hurting D and that on one occasion he had locked her out of the house to protect D from her;
· A alleged the mother had smacked F and G and that his mother told him not to tell anyone about these matters and that she would hurt him if he did.
The notice alleges that C disclosed to the father on 1 June, 2008 that her mother had physically assaulted and abused her on more than twenty occasions by slapping her on the side of the head and on her thighs causing pain, and that the abuse was current. She also alleged :
· that the mother had scratched her arms with her fingernails causing bleeding and leaving white marks;
· on 25 May, 2008 her mother had screamed at her in an uncontrolled manner causing her to be in fear, an event witnessed by the father.
The notice alleged that B disclosed to the father on 1 June, 2008 that her mother had physically assaulted and abused her and continues to do so; she was slapped on the side of the head and had been pushed, and instructed to put her head in the oven.
In addition the notice alleged :
· in mid-2004 the mother was reported to the authorities at Z School (the school then attended by the children) for striking E;
· in 2005 the mother was reported to DHS by a third party over an incident where she slapped F and disciplined D at McDonalds in L;
· between 2000 and separation of the parties in May 2008 the mother frequently yelled at the children in an uncontrolled manner both at home and in public, causing fear and embarrassment;
· the mother had frequently threatened the children were they to disclose her treatment of them to their father.
DHS workers interviewed the five older children on 28 September, 2008. All were seen separately. All disclosed verbal abuse; they spoke of yelling and screaming, triggered by small incidents such as a spilt drink. The four older children disclosed physical abuse directed to them and G. B reported her mother calling her “bitch, cow, idiot” on a daily basis. C spoke of her mother swearing at her and her siblings, calling them bitch and idiot and telling them to shut up. B and C gave accounts of G being hit; C spoke of being slapped with an open hand on the face and on the leg, and of her mother telling her not to tell her father as he would “kick her out”. D said that his mother smacked and scratched him and his siblings when they were “naughty”; E, then only five, spoke of his mother smacking and yelling at D, C and A.
When DHS workers spoke with the mother she denied any excessive discipline, other than a slight slap to A’s thigh out of frustration. She denied slapping G or C, then said she did verbally abuse the children and that “there were times very rarely when I have hit my children out of frustration.” She spoke of her past diagnosis of post-natal depression, then said that all the concerns were historical, that she had not yelled excessively at the children in five years and “I have never slapped my children”.
In his first report Dr. KN referred to the history given by the mother, which included being sexually abused in her teens when she was living away from her family of origin. There is no evidence she received any counselling or support after that abuse. Dr. KN saw this as relevant to her distaste for sexual intercourse but did not deal with it in depth. The court can only say that the impact of early sexual abuse may have resonated through her life and been a factor in her relationship with the father, her treatment of the children and her capacity to recall her own actions.
There is also evidence that the mother was treated for post-natal depression after some of the children’s births and of treatment for up to a year at a time. Post natal depression, too, has the potential to impact on behaviour and memory.
The circumstances of the parties’ separation must have impacted adversely on the mother who was left close to destitute as the father and children remained in the former matrimonial home. The parties’ financial position had been adversely impacted by the earlier failure of a business which led to the sale of their then home. The mother had been out of the paid workforce since having children. The DHS report, while not very sympathetic to her, gives a sense of her distress and confusion a couple of months after separation.
All of these matters may have played a part in the mother’s response to the allegations made against her. Inherent in the orders she sought is an acknowledgement that she has to prove that the children are safe with her before moving to overnight or lengthier periods of time with them. That may be no more than an acknowledgement of the weight of the evidence she faces or she may have more insight than she was able to articulate. Nevertheless, the court must proceed on the basis that, at this time, she does not acknowledge the extent and frequency of the physical and verbal abuse she directed at the children or its impact on them, and still tends to attribute responsibility for her predicament to the father.
All of the children save A and the little girls (F and G) were able to acknowledge their ambivalence about the mother; the court can find that their relationships with her are very important. It is important that orders foster the relationship of the children with her.
The mother’s evidence was that the children have either been coached by the father to make these allegations or made them because they are scared of their father and wish to placate him. Counsel for the mother valiantly tried to paint her evidence as one in which she conceded a good deal of inappropriate discipline but that is not an analysis which can be sustained on her evidence. In terms of physical violence, she made few admissions and they were to isolated incidents.
The mother’s counsel submitted that, at the very least, the court should find that the children have gilded the lily or exaggerated their accounts and in cross-examination it was put that they may have done this in particular on 1 June, 2008, to avert the potential for their father’s departure and their mother’s return to undertake their fulltime care. Such a construction begs the question of why the three older children, primarily parented by their mother until then, with an often absent father (due to work commitments), would be so keen to prioritise him, rather than the mother who had been primarily responsible for looking after them on almost every day of their lives until then.
The court must find that the children have been exposed to a pattern of verbal and physical abuse which diminished their sense of safety, stability and well-being. The cumulative effect of such exposure cannot be ignored. Nor can the necessity to protect the children from a repeat of the pattern.
It is trite to say that it would benefit all of the children to have a meaningful relationship with both parents. They presently have excellent relationships with their father. At the moment A is implacable in his rejection of a relationship with his mother and B, while a little more ambivalent, has also set her face against it. C is still seeing her mother on occasions and that relationship needs to be fostered.
At the moment the four younger children do have a meaningful relationship with their mother; they love spending time with her and are affectionate with her. I do not doubt that on occasions they do not want to leave her. They are both apparently thriving, despite their separation in May 2008 from their primary parenting figure when they were only three and nine months old, respectively. Their relationship with their mother must be fostered.
Ms. W’s evidence was of the value of a safe haven for the children after the tensions of the home in which they lived with both parents, where they lived in fear that their mother would be physically or verbally violent to them. She cautioned against under-estimating their anxiety, regardless of their respective ages and stages. The bottom line is that priority must be given to protecting the children. The court must determine what arrangements are most likely to ensure the safety and security of the children when they are with their mother and whether there is an unacceptable risk of harm to their physical or emotional welfare if their time with her is unsupervised.
ADDITIONAL CONSIDERATIONS
(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;
Ms. W described the children as remarkable; she made it clear that their presentation reflected parenting of both the parents over the years. They are now thriving in their father’s care and the changes in them which Ms. W described make clear the benefit of the safe haven provided by him.
Evidence of the parties, Ms. W, Mr. LR (in A’s case) and protective workers (through the DHS report) is relevant when considering the views expressed by the five older children.
Mr. LR saw A on 13 November, 2008 and described him as an articulate and relatively mature boy, who made it clear he would not have any contact with his mother. Mr. LR found no cognitive distortion or impairment and no psycho-pathology which required investigation. He described a poor and deteriorating relationship over some years and expressed an opinion that the mother’s use of physical punishment had been entirely counter productive. He described A’s lack of impulse control (this related to the occasion on which he returned with the annotated knife to his mother’s home) as part of an immature attempt to deal with physical and other conflicts. He made it clear that he did not believe it would be in A’s interests to act against his realistic sense of autonomy.
A’s views were reiterated to DHS workers and to Ms. W and I accept the father’s evidence of the attitude A expresses to him. In the mother’s opinion, A has influenced B and, possibly, D to turn against her. While they may be responsive to his views, the evidence satisfies me that their views are responsive to their experience, which they share with him.
B will be 15 in December. In her second report Ms. W said B was angry, hurt and fearful for the safety of her younger siblings, to whom she is close. She is not prepared to have anything to do with her mother at the moment. Ms. W was not confident that would change in the near future.
C is just 13. When seen by Ms. W in June this year she remained sad at the impact of the parental dispute but was generally happy with her life and the lack of tension in her primary home. She generally chose to see her mother when a friend’s mother was present. While she was happy with things as they were, and would accommodate any arrangements made by the court or her parents, she still felt concern for the safety of her younger siblings.
The mother’s evidence was that C usually comes if she is seeing the other children on weekends, and also comes on Tuesday afternoons. As C’s time with her mother is subject to C’s wishes, the court can find that she wants to spend time with her mother.
D is nine. He loves his mother but is still very anxious; he told Ms. W he would like to try unsupervised time with his mother once “to see if it is safe”. He is confused and has mixed feelings; he feels he was his mother’s primary victim, which is consistent with accounts of his older siblings.
E will be seven in November. With Ms. W in June 2009, he remembered good and bad things about his mother.
F at four and a half is described as thriving, intelligent, outgoing and indulged by all. She is too young for her views to carry weight. Despite the loss of her primary parenting figure at a critical age, she seeks and receives nurturing in her present environment and is experiencing highly appropriate and satisfying interactions there.
G is two and was described by Ms. W as a responsive and seemingly contented child. She still has a significant attachment to her mother but her emotional and physical needs are being met well in her father’s home.
(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);
Ms. W described the children as delightful, well mannered, intelligent, tightly knit and highly mutually supportive. Prior to their parents’ separation their mother had been their primary nurturing figure, as their father worked long hours. Since the separation it has become apparent that while they were nurtured by their mother they were receiving mixed messages of love and danger. That has impacted on their relationships with their parents and with each other.
The mother spoke with some insight of the changes she saw in her relationship with the younger children since separation, of how much she loves and values them, and of how much more responsive they are to her now. Indeed, she said they were responsive to the difference in her.
In November 2008 Ms. W observed the mother’s interaction with the five younger children to be relaxed and happy. C took on a considerable parenting role when they were together at court. Ms. W described the father’s interaction with the children as being open, relaxed and perceptive of their individual needs and of the children responding to him with a sense of acknowledgment and healthy exuberance. Their interaction was extremely positive.
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are 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.
The mother deposed that “in light of the concerns of [the father] and the court regarding my parenting”, she has undertaken a number of courses. She is presently about half way through an eight week parenting course at GordonCare, called Parenting after Separation. GordonCare suggested that the children could do a program called THRIVE, and other counselling has been made available to the mother at GordonCare.
In May/June 2008 the mother completed a one night Relationships Australia parenting course called “It’s all about the children” and undertook a course at home (using a DVD and materials) called “Boundaries with Kids”. In April/June 2009 she undertook a program called “Secrets of Happy Parenting” provided by EACH, which covered a range of parenting issues and sought to provide tools to parent in a better way.
The mother has been seeing a counsellor, Mr MY, for some time. The original referral may have come from her church. Ms. W spoke to Mr. MY and described him as a psychologist. At his suggestion, and early in their involvement together, the mother undertook a three to four week anger management course with him.
The court has heard many parents endeavour to explain the content of such courses and what they took from them. The mother’s account was articulate and thoughtful. Whether or not she believed initially that she needed assistance with parenting, it is probable she has learnt a good deal from these various courses and interventions and has modified aspects of her parenting
On 12 December, 2008 the court ordered that the parties and children undertake family therapy and Dr. RI was appointed to play that role. The evidence about the progress of that therapy was confusing and inconsistent. The mother may be seeing Dr. RI for personal counselling, in addition to (or possibly instead of) family therapy.
Dr. KN’s evidence was that if the mother’s problem is a lack of insight into the impact of her past parenting on the children and on their relationships with her, individual counselling would be the best way forward. He spoke of that as a potentially long term process and of it needing twelve months or up to two years to make sustained progress. He also spoke of the vital importance of acknowledgment of past behaviour; without such acknowledgment (in this case, of physical and verbal violence towards the children) there would be no sustained change.
In her affidavit of evidence in chief the mother was very critical of the father’s parenting of the children, including his parenting after separation. She complained of the children’s hygiene and bathing and of unexplained bruises. She said they were left on their own too much or with a 19 year old babysitter; she asserted they were not properly dressed. Although Ms. W was aware of these allegations she said they were not the focus of the mother’s discussions with her. To the extent necessary, I do not find substance in these allegations. I place weight on Ms. W’s evidence that the way the children are thriving is indicative of the quality of the father’s care, as well as the value of the safe haven he has created for them.
The mother was particularly critical of the father’s alleged failure to encourage her relationship with the children; in her opinion he is complicit in the older children’s rejection of her and has done little to foster the meaningful relationship the younger children have with her. From his perspective, he has worked hard (both practically and financially) to do this.
The father was criticised by the mother for failing to ensure the children, or at least the older ones, had counselling or like professional assistance after separation. I do not find substance in the criticism.
All of the children spent some time with their mother after separation although problems arose from the outset, particularly with the older children. On the father’s evidence, A and B became obdurate and both were reluctant to access counselling. He spoke with Anglicare in June 2008 and was then referred to a family relationship centre. After an initial meeting, the father was told that workers would meet with the mother and then see the children. However, in late July or August 2008 he was advised that the centre would do no more work with the family. No explanation was offered.
Early in October 2008, A told the father he was taking items he associated with his mother’s abuse back to her. One was a kitchen knife. The father’s evidence, which I accept, was that he did not know A had written “arsehole”, “killer” and “number two” on the knife but saw his capacity to symbolically reject her violence and abusive conduct as mature. He said he would not have allowed it to occur if he had known of the annotations on the knife. When he learnt of it, he insisted A and B see a school counsellor, Ms EV, which they did, on some three occasions in late 2008.
On 12 December, 2008 orders were made for family therapy and Dr. RI was appointed to undertake this. A and B both saw Dr. RI once in about April 2009 and there has been some involvement of the parties with him. The father’s view is that the mother has been obstructing counselling of the children because it is likely to result in them making further disclosures of her violence, as occurred when they met with DHS workers, Mr. LR and Ms. W.
Pursuant to an order made on 17 August, 2008 A saw a psychologist, Mr LR. In his opinion, A was not then ready for professional intervention. He said A’s realistic sense of autonomy should be recognised.
The father was candid about his own sense of betrayal and his lack of respect for the mother now as a parent. The impression he gave was of being profoundly shocked by the disclosures the children made in June 2008; Ms. W spoke of him moving from initial shock, sadness and grief towards anger with the children’s mother. He wants nothing to do with her, a position which is not tenable if (as both seek) the parents are to retain equal shared parental responsibility for the children.
A parent in the father’s position faces a dilemma. On the one hand he or she needs to acknowledge and respect the children’s account of the abuse experienced by them; on the other hand, by doing that, he or she can be criticised for failing to facilitate an ongoing relationship with the abusive parent. It is unsurprising that the older children relate to their father’s distress and unsurprising that his focus is strongly on the children’s safety. That said, he has an obligation to do what he can to mend bridges between the mother and the older children (which may be a long term project) and to actively foster the mother’s relationship with the younger children. While it is not essential that he answer telephone calls from the mother, when she rings in anticipation of speaking to the children, he should do more than simply enquire whether anyone wants to speak with her. To that extent, there is substance in the mother’s complaints.
Ms. W’s evidence was of speaking to the father about the children’s awareness of his anger. While it is clearly a matter of degree, and boundaries, Ms. W said that his acknowledgement of anger to the children was “not a bad thing”; she said it validates the children’s disclosures for them to know he is angry about their abuse. On the other hand, she made it clear that in the children’s best interests he should encourage them to speak with their mother when she telephoned.
The mother needs to recognise the significant contribution the father has made to ensuring she see the children during the currency of the orders for supervised time. If he had not made the nanny available, she would have had considerably less time with the children. He may have been inflexible about some requests for changed times, but I do not find it inappropriate for him to have tailored the periods to accommodate the nanny’s working hours and other commitments.
The father agreed that A had been “rude and profane” to the mother and that he had observed it on occasions; for example, he had heard A say “fuck, it’s her” when she arrived at the home. That account is consistent with the mother’s evidence of A answering the phone at his home and saying “fuck, it’s you”. It is naive of the father to believe that the older children, in particular, will not pick up his distress and his anger.
Ms. W observed that the parties were both unwilling to sit together and any respect each had for the other “had withered away”. From the father’s perspective, the mother’s behaviour towards the children over many years, her denial of responsibility and the allegations she has made against him define her; while these are not the words he used, he sees her as a violent, irresponsible and dishonest woman who has forfeited the right to his respect. He would be happy to have nothing more to do with her, ever. From the mother’s perspective the father has manipulated a situation to exclude her from the children’s lives, reconstructed events prior to separation to paint her in a bad light and undermined her relationship with her children.
The mother agreed that it had been useful to have another adult present when she was with the children but maintained her position that none of the supervisors knew why they were necessary. Her own evidence was that they were never necessary. The father was adamant that there is an unacceptable risk to the physical and emotional safety of the four younger children if their time with the mother is not supervised.
The father proposed that the mother’s time with the children be supervised indefinitely by the nanny, the mother’s parents or three other named people (Ms CN, Ms AS and Ms DO – all of whom have supervised in the past) or such other people as were agreed. He did not support supervision by Ms. OO or Ms. ME on the basis the mother concealed her past abuse from them, neither of them saw any need for supervision and both were very critical of him in their affidavits.
Ms. W recommended in June this year that the mother’s time with the children be supervised until she gained the insight necessary to recognise and deal with the issues the children were still facing. Her recommendation was that the children should have more daytime contact with her, if possible.
Cross-examined Ms. W made it clear that her recommendations about supervision were entirely dependant on the court’s findings about what had occurred and, if the mother were found to be as violent as alleged, the mother’s acknowledgement of her violence.
If the mother’s contact were to be unsupervised, Ms. W proposed shorter periods of time than initially sought by the mother; she spoke of the potential for her to spend time, initially, with two children at a time, rather than all four. She also spoke of the possibility of the mother having some unsupervised time with D and E, while maintaining supervision of her time with F and G.
Dr. KN’s evidence was that, from a psychiatric point of view, there is no need for supervision. Whether the mother’s time should be supervised or not would depend on the facts found by the court. Dr. KN spoke of the importance of acknowledgment of destructive behaviour to the ongoing counselling or other therapeutic intervention designed to counter such behaviour in the future.
I accept that the father is genuinely concerned about the potential harm to the children if supervision is removed, particularly if supervision is removed for the most vulnerable of the children, being F and G, who are too young to articulate any concerns. Ms. W acknowledged the limits of children of the ages of D and E in this area; while they have the capacity to speak out, many factors could militate against them doing so. By way of example she spoke of D telling her about his mother hitting him in the supermarket in the first set of interviews, about which he had not then told his father. He was “holding on” to some things.
As Ms. W observed, D and E enjoy spending time with their mother and want to see her; they could be reluctant to tell their father if she reverted to her former behaviour, through fear that they would see her no longer. Children can love and want to please a parent, even though that parent is hurting them. A court should not impose on children of their ages responsibility for their own safety.
It was for these reasons that the father proposed that if there were to be some unsupervised time, it could start with the mother seeing C without supervision in a public place. I do not suggest that a child of C’s age should be responsible for her own safety, but she has far more capacity to articulate her concerns and remove herself than do her younger brothers.
On the mother’s behalf it was put that it was very difficult to arrange supervisors and that it is demeaning to be required to submit to long term supervision. Ms. W showed a healthy and robust disregard for these factors; she said her focus was on the safety of the children. If a child’s time with a parent is supervised, without necessity, the child could get a signal that the parent was not safe, which would not be good for their relationship. But the central issue remains an assessment of risk. The sense of Ms. W’s evidence was that the court should be reluctant to take chances with young children’s safety, a stance with which I agree. The ICL’s submission that the court “should not set the bar too high” may have been a counsel against requiring perfect parenting but the emphasis must remain on an assessment of risk. If the risk is unacceptable, “the bar” must be set with that finding in mind.
(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;
Asked by the court about her long term plans, the mother said she hoped to implement a week and week about residence arrangement for the four younger children, while allowing the three older children to choose with whom they lived and what time they spent with the other parent. She did not propose the implementation of such an arrangement at the end of the twelve month period of unsupervised time, saying there would need to be some overnight time introduced first. Asked about the impact of separating the siblings, she said that the four who lived with her would be with the other three every second week, and would be able to see them at school.
In her 2008 report Ms. W expressed the opinion that splitting the children would pose dangers for them; the older siblings are profoundly important to the stability of the younger children. Cross-examined she reiterated that in strong terms. The relationship between the children is fundamental. The older children are strong, stabilising and nurturing figures in the younger children’s lives. Ms. W said she would be extremely concerned about any separation of siblings. To separate them would be “another huge loss” for the younger children.
It is apparent the mother has been devastated by the loss of the children and it is probable that every day they do not live with her has been deeply distressing to her. Her application, until the trial commenced, was for all seven children to live with her and it might be said that a proposal for a shared residence arrangement in respect of the younger four is indicative of a significant change and preparedness to be more flexible. That said, the mother could have been in no doubt of the expert evidence of the likely effect on the children of separation from siblings. While Dr. KN was not specifically asked about this question, he volunteered at one point that the children are a family and need to live together; nothing said by him could be said to be supportive of splitting the children, even in every second week. The mother’s proposal, whether it was to be implemented in 2010 or later, does not suggest a capacity to reflect on the children’s long term needs.
Ms. W was asked by the court about the impact on the older children if the younger ones spent unsupervised time with their mother. In her opinion the older children would be anxious, concerned and fearful for their siblings’ safety. On the other hand, if they perceived the younger children to be safe and blossoming with their mother, their own attitude to her may change.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother’s spousal maintenance application is before the court for determination and the father was cross-examined at some length about his capacity to save money by cutting down on the hours worked by the nanny. Indeed, it was put that a removal of the supervision requirement would save him money, as he would not have to pay the nanny to spend the time she now does with the mother and children. The mother’s counsel did not stress this aspect in final submissions.
The mother’s financial position at the moment would not allow her to pay for private supervision. The father proposed that he continue to do this, through providing the nanny to supervise when that was the most practicable arrangement or when other supervisors were not available.
(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;
All children need to be considered as individuals. No submissions specifically referrable to this sub-paragraph were made. Both parents are members of the same Christian church and their faith is important to them and their children. There was no evidence they were at odds about the role of religion in their children’s lives.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
As noted earlier, an order in these terms may mean the case needs to return to court. The orders sought by the mother and ICL would have that same result. I propose to order that from the end of the twelve months of supervision (and substantial attendance as described) the mother spend such time with the children as is agreed between the father and mother. The mother will have liberty to apply if the parties cannot agree on the removal of the requirement for supervision or the time she is to spend with the children, or maintains her application for residence.
In practise this may be little different to making an interim order. However, both parties are intelligent people, as observed by Dr. KN. Both love their children and that should be the best incentive to make orders work in the future. If the next period of supervised time is as successful as the previous one, the children’s ambivalence may disappear as they become more and more reassured of their safety with their mother.
To avoid doubt, I make it clear that it is the intention of the court that the mother can return and have her applications for removal of supervision, overnight time and, if she persists with it, shared residence determined. It is not a case in which she will need to adduce evidence of new facts and circumstances. If further litigation is necessary, she will no doubt rely on changes in her own circumstances and the nature of her ongoing relationship with the children, but that will not be a threshold issue.
Orders will restrain the mother from applying any form of corporal punishment to the children and both parties will be restrained from denigrating the other in the presence of the children or from discussing the proceedings with them, save that the father can inform the children of the outcome.
The ICL sought an order that the mother engage in counselling as recommended by Dr. KN. I do not propose to make an order compelling her to do so. I would not be prepared to make it a condition of her spending supervised time with the children; that would be punitive to the children and contrary to their best interests. However, the mother must realise that if she wants to move to unsupervised and overnight time with her children, she is going to have to persuade the father, and if he cannot be persuaded the court, that she has confronted the problems described by Ms. W and the way to do that is to engage with professional services. She has shown a capacity to undertake and learn from parenting courses; Dr. KN’s evidence is that what is required is some relatively long term psychological counselling. If she discusses the matter with her general practitioner a plan could be drawn up to enable those attendances to be affordable.
The ICL also sought that the father “forthwith commence to attend family therapy as provided in paragraph (8) of the orders of 12 December, 2008”. This is a perplexing request, as those orders required both parents to attend upon a counsellor for the purpose of family therapy. As with the mother, I would not be prepared to make the residence orders conditional on the father attending any form of counselling, as I am satisfied he has created a safe haven for the children and they are thriving in his care. However, he has heard the evidence and may conclude that some professional intervention would be of assistance to him, too. I appreciate he is very busy but do not doubt his capacity to juggle his commitments if he believed it would assist the children.
I have not considered the ramifications of the presumption of equal shared parental responsibility for reasons which should be obvious. The presumption is displaced by the findings of abuse and family violence. Both parents seek an order for equal shared parental responsibility, notwithstanding their current disrespect for each other and incapacity to communicate. The ICL supported the making of an order in those terms. It would not be in the best interests of the children to order that they spend equal time with each parent; while the mother may aspire to such a position, it is not her application now. The orders made provide for her to have significant and substantial time with the children; she will see them on six days a week, save for a few periods in school holidays.
Given the parties’ agreement about equal shared parental responsibility, I am satisfied orders should set a framework to ensure that the mother is aware of matters referrable to major long term issues, such as the children’s health and education. So long as another adult is present for all, or much, of the mother’s time with the children, the father will know if a child is ill or has an accident. However, the orders contain the capacity for a different regime to operate and it is appropriate they provide for each of the parents to notify the other in the event a child suffers a significant illness or accident while in his or her care. The mother will be entitled to be consulted about the school the children attend and orders will provide for her to receive copies of school reports, photo order forms and other information. By appointment, she may consult with the school principal about the progress and development of the four younger children, save that no such appointment is to be made for a time at which any of the three older children are likely to be at the school.
Both parties and the ICL sought that the court leave in the hands of the three older children decisions as to where they live and the time they have with the parent with whom they do not live. At the moment it is clear that they wish to live with their father. A and B are having no contact with their mother; C does see her on occasions and it is to be hoped that will continue. I do not propose to make orders about the mother’s involvement with their schooling. At the moment A and B want nothing to do with her and it is probable they would be angry, and even more entrenched in their antipathy, if they learnt she was enquiring into their educational progress. While C is more ambivalent, there is a risk she would respond in the same way. It is to be hoped that the father will attain sufficient detachment to realise the importance to the older children of resolving the problems they have with their mother and to discuss with them making school reports and other information available to her.
I am satisfied that the best interests of the children will be served by making an order for supervision and assistance pursuant to s.65L of the Act. That section enables a family consultant to provide assistance to the parties; the family consultant is available to discuss problems either or both may have in implementing the orders or, in an appropriate circumstance, assistance with a referral for a parent or a child. The family consultant will not initiate any contact with either party; the role is reactive, rather than proactive. Once advised of the name of the family consultant appointed, either party can contact him or her for assistance of the kind described. If Ms. W is available, it would be preferable for her to undertake the role as she has met the parties and children on two occasions. However, her commitments may preclude involvement and in that case, the parties will be advised of the name of another family consultant.
The order will remain on foot for a period of twelve months. If a subsequent application is filed, or this matter returns to court pursuant to the liberty to apply provision, the judicial officer before whom an application is listed will have the capacity to order a report from the family consultant as to any discussions she has had with the parties and any advice given.
SPOUSAL MAINTENANCE
The mother sought spousal maintenance, relying generally upon the shortfall between her expenses and income. In particular, submissions could be said to relate to sub-paragraphs (a), (b), (g), (j), (k) and (l) of s.75(2) of the Act.
In Bevan & Bevan (1995) FLC 92-600 at 81,981-982 the Full Court stated the law as being :
. . . that an award of spousal maintenance requires :
1. a threshold finding under s 72;
2. a consideration of s 74 and s 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstances” as the guiding principle.
Section 72 imposes a duty on a party to maintain the other if reasonably able to do so and if that other party is unable to support himself or herself adequately by reason of one of the factors set out in the section. Section 74 enables the court to make such order as is proper and it is further required to take into account the matters referred to in s.75(2). As the Full Court noted in Mitchell & Mitchell (1995) FLC 92-601 at 81,995, the threshold question of whether an applicant can support him or herself “adequately” is not to be determined by any fixed or absolute standard, but having regard to the matters referred to at s.75(2). Nor is the question to be determined upon a “subsistence” level.
In [151 – 158] of the affidavit she swore on 10 July, 2009, the mother deposed to her financial circumstances. In oral evidence she elaborated on some aspects, and matters referable to the application can be found in other parts of the affidavits on which she relied in the trial. She swore a financial statement on 10 July, 2009.
The father’s response to the matters raised by the mother in [151 – 158] is found in [31 – 35] of the affidavit sworn by him on 24 July, 2009. As with the mother, additional oral evidence was adduced and matters referable to the application are referred to in other parts of the affidavit relied on by him in the trial. He swore a financial statement on 17 July, 2009.
There is no doubt the mother is unable to support herself adequately. In her financial statement she deposed to an average weekly income of $320 of which $100 represented the Newstart allowance, a means tested pension. At that time she was earning some $220 a week doing cleaning work, for some two and a half hours a day. Her evidence was of obtaining an additional half hour work a day which would bring her earnings to $250 per week. She deposed to fixed personal expenditure of $550 a week, plus $463 a week on the items set out in Part N of the financial statement. Of that $555, she attributed $375 to herself and $180 to the children.
The mother is paying $330 per week rent, and has only been able to maintain those payments through the financial assistance of her parents, friends and the church. A $900 shortfall on the changeover of a motor vehicle was paid by her parents. She is renting items such as a freezer, washing machine and computer and while she has been trying to pay off Mastercard and Visa Card debts, has not been successful to date.
While one could argue about a dollar here or there in the expenses claimed by the mother, it is a fruitless exercise, given the significant shortfall.
The father is employed as an executive in the finance industry and is on a package of $191,000 per annum. He is eligible for a bonus of up to 25% of his base salary, which would routinely be declared in August. Following application by him he was recently advanced $15,000 as part of that bonus, nett after tax. A payslip for the period 20 July, 2009 to 2 August, 2009 shows a gross bonus figure of $28,012. From a total taxable sum of $34,757 some $15,196 tax was deducted in that period. Attached emails confirm that for him to receive $15,000 nett required a bonus payment of $28,012, which translates to 58% of his maximum bonus. The court can proceed on the basis he is likely to receive a further sum this year but not necessarily up to the full 25%. Given the payments in the past and the payment of a bonus this year, notwithstanding the global financial crisis, it is probable he will receive a bonus in future years although it cannot be quantified with exactitude.
Although in his financial statement the father deposed to an average weekly income of $3,520 and average weekly expenditure of $3,980, he agreed when cross-examined that he generally “keeps his head above water” on a fortnightly basis. At the moment he has outstanding credit card debts and school fees of some $9,000. He has paid some $22,000 in legal fees and will have to pay a further $29,500, plus Dr. KN’s fees. Some expenses claimed may be able to be pruned but most were not successfully contested.
Outstanding legal fees, school fees and credit card debts are likely to consume much or all of the bonus received by the father this year.
In future years some or all of the bonus may be available for more discretionary spending although the financial demands of raising seven children are likely to increase as the children age.
It was put by counsel for the mother that the father could reduce the superannuation component from the mandated rate within the company of 17%, to 9%. The father’s evidence is that he has recently done that as he had to find additional income when he discovered he was not, as he had thought he was, eligible for the 50% childcare rebate. The payslip tendered shows the applicable superannuation rate as 9%.
The father was criticised for expending $1,000 a year for a short family holiday, something which occurred regularly before separation and which he has maintained for the benefit of the children. I do not find the criticism warranted. He pays $50 per week to the church. Whilst that is commendable and he may well see it as a religious obligation, that cannot take priority over his legal obligation to support the mother.
As previously found, the father spends some $911 per week on childcare, of which the nanny is paid $763 and a childcare facility $148. Counsel for the mother did not press an earlier argument about the potential to reduce the nanny’s hours, a sensible forensic decision.
Counsel for the mother extrapolated tax rates into the future from the pay slip tendered by the father and submitted the court could find additional income would be available in pay periods which did not include a bonus payment. I am not satisfied the argument he sought to make is sustainable but even if it were, the father’s expenses (and debt repayments) would not reduce.
The impression the father gives is of being an astute financial manager who will budget in an orderly way within the constraints of available income.
I turn to the relevant s.75(2) matters :
(a)the age and state of health of each of the parties;
The father is 41 and appears to be in good health. The mother is 43. She has small fibre neuropathy, a neurological condition which can cause tiredness, pain in the hands and feet and stumbling if tired; for this she takes Tegretol. The ulcerative colitis she experienced earlier in her life has settled and has not been a problem for the last fifteen years. She has had problems with iron absorption. At the time she saw Dr. KN in April 2009, she had been taking Zoloft prescribed by her general practitioner for some ten months but had recently ceased. She was stressed and could be tearful and upset when she thought of the children.
Dr. KN expected she would need ongoing support from her general practitioner from “time to time” over the years, depending on “the vagaries of life” and might need to be prescribed some psycho-tropic medication. He was generally optimistic about her prognosis.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
I have summarised the parties’ broad financial positions and incomes. The father has been able to rearrange his working hours to accommodate the obligations of maintaining a large household and does a considerable amount of work at home, when the children are in bed or, perhaps with the older ones, able to be left to their own resources. It is clear from his evidence that he anticipates a continuation of his present position.
The mother’s capacity for employment is limited by her lack of qualifications, the long period she was out of the paid workforce, some aspects of her health and (for the next year at least) the need to be available to spend time with the children in periods where the nanny can be made available to supervise. Much casual and part-time work requires a good deal of flexibility. She presently earns an hourly rate which is roughly equivalent to that paid to the nanny. Dr. KN noted her advice to him that she found the cleaning work tiring, which is explicable. At that time she was hoping to obtain other work with a pastor but there was no evidence that eventuated. It is unlikely she will ever be in a position to earn more than a very, very modest income.
Pursuant to s.75(3) the court must disregard the mother’s entitlement to the Newstart pension, as it is income tested.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The orders proposed will provide for the mother to have time with the children on six days per week.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
I do not doubt the mother is living in circumstances which are significantly less comfortable than those she experienced during the marriage. The court cannot say of her what the father said of himself, which was of keeping his head above water on a fortnightly basis; using that analogy, the mother is floundering. Her lack of income may result in her needing to rent cheaper accommodation and she is very worried about the environment in which she will see her children.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The mother has been out of the paid workforce for most of the period since A’s birth in 1993. The father blames the financial problems which led to the failure of their business and the sale of the family home on the mother’s incompetent book-keeping. The court does not need to determine issues relating to the business and its failure, but on his evidence alone the court could find that some avenues of work are unlikely to be open to her.
The father was able to build on his earning capacity by working long hours during the marriage. While he has cause to criticise aspects of the care the mother provided to the children during that time, her assumption of responsibility for the children and the home meant he was able to concentrate on his career. That she focused on the family was part of their then agreed “partnership”.
(l)the need to protect a party who wishes to continue that party’s role as a parent;
I have already found it to be reasonable for the mother to arrange her income earning activities around the limited and structured periods of time she is to have with the children, pursuant to the court orders.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage; and
The mother has been assessed to pay the minimum child support of some $12 a fortnight. In his final submission, counsel for the mother may have used a figure of $12 per week, but that is not consistent with the mother’s financial statement. The father made it clear that he would be content for her not to pay that sum. From his perspective it would be better if the Child Support Agency did not take that money from her, rather than that he receive it and, effectively, pay it back to her by way of maintenance. No application before the court would allow it to make any changes to the child support assessed.
CONCLUSION
The mother sought $300 per week spousal maintenance and that figure could certainly be justified if the father has the capacity to pay. Save for the concession about child support, the father submitted he had no capacity to pay anything. I am satisfied the father can pay spousal maintenance of $75 per week. That figure will seem very small to the mother but I am not satisfied the court can find a capacity to pay more. In essence the figure means the father must redirect funds now paid to the church to the mother, act on his concession about child support and tailor some of his other expenditure, as I am satisfied he can, to find the few extra dollars.
No submission went to the duration of any order made or its adjustment. Orders will provide for a cost of living annual adjustment. The spousal maintenance order will cease at the expiration of ten years or on the mother obtaining full-time employment or the mother obtaining employment at any rate equivalent (having regard to cost of living adjustments) to a current gross wage of $700 per week. That figure is fixed having regard to her evidence of current expenses and shortfalls.
I certify that the preceding
217 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2009.
…………………………………………
Associate.
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