Chifley and Rollins
[2017] FamCA 1088
•15 December 2017
FAMILY COURT OF AUSTRALIA
| CHIFLEY & ROLLINS | [2017] FamCA 1088 |
| FAMILY LAW – CHILDREN – PARENTING – where consent orders tendered have little curial effect – where history of past orders gives no comfort that these proposals will be any different – where it is found these proposals do not satisfy a best interests’ test. |
| Family Law Act 1975 (Cth) |
| Bondelmonte v Bondemonte (2017) FLC 93-763 Harris v Caladine (1991) FLC 92-217 Poel [1970] 1 WLR 1469 U and U (2002) FLC 93-112 VR v RR [2002] FamCA 320; (2002) FLC 93-099 |
| APPLICANT: | Ms Chifley |
| RESPONDENT: | Mr Rollins |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 4744 | of | 2014 |
| DATE DELIVERED: | 15 December 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 7 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Heggie |
| SOLICITOR FOR THE APPLICANT: | Toner & May Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Robertson |
| SOLICITOR FOR THE RESPONDENT: | Cinque Oakley Senior |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jenkinson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sofra Solicitors |
Orders
Upon the court refusing to make orders in terms of the parties’ consensual arrangements, orders were made concluding the proceedings with the parties executing a parenting plan
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chifley & Rollins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4744 of 2014
| Ms Chifley |
Applicant
And
| Mr Rollins |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
7 December 2017 was to have been the first day of the final hearing of a number of days concerning a parenting dispute between Mr Rollins (“the father”) and Ms Chifley (“the mother”). Each was represented by counsel as was the Independent Children’s Lawyer.
To the parties’ credit, the issues were said to be resolved and, supported by the Independent Children’s Lawyer, the parties signed a minute of what orders they wanted.
Having read the minute, I indicated I was not prepared to “rubber stamp” the proposed orders but if they were seriously intending their agreement to finalise the dispute for the future benefit of their three children, I would encourage them to consider a parenting plan. I likened that concept to a contract between the parents under which each would fulfil what they saw as an obligation which was beneficial to their children and, should a breach of that agreement arise, they could issue a specific application for parenting orders.
The parties faced the prospect that I would dismiss their respective applications, leaving no orders in place, on the basis that despite their agreement, and despite the endorsement of it by the Independent Children’s Lawyer, I was not satisfied it was in the best interests of their children.
The parties opted for the personal contractual approach.
I agreed with counsel to set out my reasons for the indications I had given (and which were taken seriously by counsel). Each counsel had urged me to make the agreed proposals in the form of final orders but as I have indicated, I was not prepared to do that and these are my reasons.
The mother is 42 years of age and the father 50. They commenced their relationship in 2000, married in 2001 and separated in April 2012.
Out of this relationship came three children. B is now 16 years and seven months, C is aged 14 years and six months and D is now nine years and five months.
These parties have been involved in proceedings for three and a half years.
Each of the parents has children from previous relationships who also live with them along with these three children. Each also has a younger child from a relationship subsequent to the final separation. The mother has children who are adults and all live independently from her. She has a child who is aged four years of age who lives with her.
The father has five older children from a previous relationship and, subsequent to the separation with the mother, commenced another relationship from which a child was born in 2014. That relationship has also now come to an end. The father does not have any contact with his child from that relationship but there are current family law proceedings extant.
It is unnecessary for me to set out the details of where the three relevant children have been subsequent to separation save that they have wandered from one house to the other.
There have been proceedings in the Children’s Court including intervention orders. There have been proceedings in the Magistrates’ Court where intervention orders were sought by the mother against a partner of the father with whom he had a fleeting relationship.
The Department of Health and Human Services issued protection applications in the Children’s Court to remove B and D from the mother’s care and in November 2012 placed them in the father’s care. The fundamental problem according to the Department was the mother’s use of illicit drugs, exposure of the children to violence and general neglect of them. Those proceedings culminated in the Children’s Court releasing B and D to live permanently with the father. C was not subject to the order because he was already living with his father.
The family consultant appointed by this court to examine what has occurred here has done a wonderful job. She noted that the Department of Health and Human Services received 17 reports relating to these children between October 2009 and January 2017. Eleven of those reports were closed at intake which tends to suggest that they were either vexatious, malicious or just irrelevant. Most of the concerns appear to relate to substance abuse, parenting capacity, environmental neglect, conflict between the parents and physical abuse of the children. There have now been allegations of sexual abuse made by B towards the father but those were dismissed by the Department.
In respect of the allegations against the father, child protection decided that the complaints were malicious or not substantiated. The Department then worked with the mother and appear to have been successful because no concerns have been identified thereafter. However, in July 2016 a further report was received about the children but when investigated, the Department noted that the school indicated they had no concerns for the children’s safety and wellbeing. Both schools indicated a collaborative working relationship with the father and that the children were doing well.
Thus it can be seen that these parties have litigated for almost five years. They have had numerous court appearances in this court, the Federal Circuit Court, the Magistrates’ Court and the Children’s Court. It is trite to say that previous orders have not worked successfully. In November 2014, final orders were made in the Federal Circuit Court. The significance of final orders lies in the fact that if made by consent, the court is entitled to presume that everyone says that it is in the best interests of the children for the orders to be made. Remarkably, the orders in 2014 included that the parents have equal shared parental responsibility for the three children, that all three children live with the father and spend time with the mother during each alternate weekend and half of each school term holidays.
Significantly for the purposes of these reasons, the 2014 orders provided that B was to attend therapeutic counselling as were the parents. Each parent was restrained by injunction from using drugs or being under the influence of alcohol at the time that the children were in their care. It is bizarre to say but the order of the court was that they were not to break the law by taking illicit drugs. That order was replicated in the proposed consent orders in this hearing.
The 2014 orders also provided that each party was to refrain from abusing or denigrating the other in the presence or hearing of the children or discussing the proceedings. With the wisdom of hindsight the 2014 orders could never have worked.
It was not long before the parties were back before the Federal Circuit Court again and in December 2016, Judge Riethmuller transferred the proceedings to this court.
The family consultant appointed by the court to provide expert advice about a number of matters wrote:
[14]It would appear that the parents have not participated in mediation at any stage during these proceedings.
Despite that, one wonders what mediation would have achieved bearing in mind, first the background but secondly, when I turn below to the affidavit material upon which each relied, and which was only filed six weeks ago, a mediation would seem pointless. But more importantly, this was not the first time the parties had received the assistance of a family report. The Federal Circuit Court engaged a psychologist outside of the court and no doubt paid for it, and recommendations were made focussing on a therapeutic approach to fixing the problems for the children. That becomes relevant when I turn to what the parties were proposing in December 2017.
Despite the 2014 orders, the advice of the family consultant and the fact that things should have settled because the orders were purporting to be in the best interests of these children, the conflict escalated. The manifestation of that conflict was that the parties had great difficulty communicating with each other about not only the children but also their needs.
The time the children spent with their mother remained inconsistent and unpredictable with each parent pointing the finger at the other as to the cause. Each accused the other of not cooperating in respect of the implementation of the orders. In April 2015 when the mother had some time with the children, she over held them. She justified that on the basis of concern about their care in the father’s possession but then the court returned the children to the father in April 2015 when he applied for a recovery order. That seems to have precipitated the present proceedings.
Counsel, in urging the making of final consent orders, observed that the family report which had been received only immediately prior to the hearing indicated that the parties had had an “epiphany”. One must wonder what was it that the family consultant said that brought about this sudden change.
In her affidavit for trial sworn on 31 October 2017 (five weeks prior to this hearing), the mother set out in 159 paragraphs, a litany of complaints. They ranged from allegations of drug abuse and assaults to poor care of the children. If true, these allegations were serious in terms of the capacity of the father to care for the children. If untrue, they could only be an indication of an internecine war.
The proposals for how the children would be cared for, and any relationship with their father being supported, ran to eight paragraphs. Lawyers have to take responsibility for defining issues and making evidence relevant to the relief sought. The indication just given gives rise to my doubt about what this court was being asked to do here.
Poignantly the mother said:
Over the years, whilst I would regularly use, I ensured the children never saw me taking drugs. There is no doubt however that the children would have seen the effect of the drug use.
To the extent that that was an epiphany moment, I find it remarkable.
In the mother’s outline of case document drawn by her solicitors and filed on 6 December 2017 (the day before the final hearing began) she proposed that the parties have equal shared parental responsibility for all of the children and that:
The parties agree that [B] should continue to live with the mother and that no spend time orders (sic) with the father should be made.
In respect of C and D, the outline of case said that the main issue was where these children should live. It said that the mother’s position was that the three siblings should be reunited and returned to her primary care and that C and D should spend substantial and significant time with the father.
The father’s affidavit ran to 146 paragraphs. It was responsive to the mother’s allegations mostly denying them. His future-looking evidence ran to 20 paragraphs.
The father’s outline proposed to rely on 31 documents, few of which had any relevance. The outline traversed the s 60CC factors with rhetorical flourishes that bore little resemblance to the evidence. For example, it said:
The father has had no contact with the child, [B] for approximately two years and they have no relationship at present. In the future, the father hopes to resolve his differences with [B] and once again have a meaningful relationship with her.
The father maintains that the welfare of [C] and [D] would be at risk if they were to live with the mother. In the past, the mother has demonstrated that she prioritises her own needs over those of her children. In particular, the mother’s addiction to illicit drugs has seriously affected her capacity to parent. The father has real concerns that the children would be subjected to neglect and possibly abuse if they were in the primary care of the mother.
In respect of that last quote, the evidence did not support any such assertion and to the extent that the onus is on a party to prove any allegation, it would have failed miserably.
The family consultant said that the mother acknowledged that C would refuse to live with her and consequently her proposal was to focus on D living with her and spending time with the father. It was the mother’s hope that C would resume spending time with her. Despite that, as I shall mention, the 2017 orders proposed something different.
The mother also told the family consultant that she did not wish to be present at changeover for the children and proposed a third party facilitate that changeover. Previously, the parties had agreed by order that the handover of these children take place at a police station. No indication was given as to why that was necessary but it must conjure up an indication of the need for security because of the behaviour of the parents.
The father told the family consultant that he proposed that B live with the mother but spend time with him “as agreed” and C and D live with him and spend time with the mother during school holidays and on weekends that include non-curriculum days. He proposed that the changeover of the children occur at the E Town police station.
Seventeen days prior to this hearing, the father anticipated that both of the younger children would spend time with the mother during alternate weekends. But, that is not what he meant.
It was also not contentious that both parents had a history of drug use. Each raised concerns about the other continuing that illicit substance use. Each also urged the court to make a finding that they were not currently using drugs. As the family consultant observed, no corroborative evidence was produced by either parent in the sense of drug screening over the last 12 months.
Allegations by the mother against the father of excessive alcohol consumption whilst he had the care of the children were also made.
These parties had also attended upon a psychiatrist for the purposes of an assessment ordered by the court. The psychiatrist found the mother had obsessive compulsive disorder with co-morbid social and general anxiety and a borderline personality disorder. The psychiatrist thought that if it could be established that the mother was drug free, it demonstrated a significant commitment to change. One must ask why some endeavour to corroborate the mother’s assertion about being drug-free was not made. In respect of the father, the psychiatrist said that there were no psychiatric issues although the father might benefit from working with a clinical psychologist to “develop some anxiety management strategies”. There was no evidence of that happening.
The family consultant noted that B presented as an angry young woman who when asked about her father, said:
I hate him. I don’t want to be near him ever again. He used to bash me. And he raped me…I was 11 years old..I didn’t tell anyone for a while cos he said he would kill me.
This is the child that the father hopes to have a relationship with in the future and about whom he says he will take on the parenting responsibilities jointly with the mother.
C was interviewed by the family consultant. He has an assessment of ADHD and learning difficulty. He also has a rare and incurable condition. All of this requires attendances on a paediatrician and the F Hospital.
C has not seen his mother since the start of 2017. When asked by the family consultant why that was so he said:
The reason why I don’t want to see Mum is because she calls the cops on you for no reason. And she called the cops to try and rip me out of my own home with Dad. They wanted to take me but they did not take me because I said no.
He then went on to accuse his mother of making up lies about his father.
The family consultant was adamant that C would not see his mother and would “scream” if he had to see her. Despite the family consultant’s attempts to engage C with his mother, he would not talk to her and requested to return to his father.
This is the child about whom the parties reached agreement that he should spend alternate weekends with his mother commencing the day after the hearing but subject to his wishes.
D is nine years old and is achieving well at school. There are no concerns about D. D related well with her mother and there were tears but when it came for time to leave, D was not distressed notwithstanding her mother was. When her mother did become distressed, so did D.
Remarkably, D spoke to the family consultant afterwards and said:
Mum always cries when I leave her or when I come to her and that makes me cry. I don’t see her so much. Sometimes Dad says Mum has a flat tyre and can’t come. I get a little bit disappointed but you can’t help a flat tyre.
D told the family consultant that they had to come to court to see “what’s going to happen”. D was conflicted and did not want to choose.
It is unnecessary for me to detail much about the consent orders that the parties had proposed but they have to be seen in the light of that historical detail and importantly, what the parties themselves presented as evidence for the making of making of parenting orders. That evidence was only six weeks old. It is also to be seen in the context of the discussion with the family consultant only 17 days ago.
The parties agreed on a raft of things including that they would attend counselling. That has been said before and ordered.
The parties also agreed on equal shared parental responsibility. Leaving aside the fact that decisions of that nature have not been made jointly by the parties to date, there was no evidence as to how it would work in practice. Counsel for the Independent Children’s Lawyer submitted that the parties managed to text message each other but the very fact that the father was proposing a changeover at the E Town police station and the mother insisted that the parties each remain in the car whilst the children shuffled backwards and forwards, indicates the depth of respect each has for the other not to mention the prospect of any resolution of any dispute between them over such things as health and education.
The remarkable thing however could be seen in respect of C. The parties agreed that commencing on the day after the hearing, both C and D would spend each alternate weekend from Friday to Sunday with the mother and there was a handover point nominated. However the parents then agreed that C could choose whether or not he went. In addition to that dilemma, the order in respect of B was that she live with her mother and she could choose whether or not she had time with her father.
In my view, none of those orders was practicable or appropriate. I asked counsel for the father whether he could guarantee that in the context of the two paragraphs relating to C, C would actually attend the handover for time the next day with his mother. Counsel said no such guarantee could be given because it would be a matter entirely for C. Why then would the orders be in his best interests? It is not so much a matter of him making the decision but how any such order could be enforceable. The court was being urged to have some sort of guide book, road map or bible to which the parties could turn as to how to resolve their problems but none of the issues of how they would resolve decisions about parenting was addressed. Parents make decisions about what happens to their children but here, the two older children were given the responsibility of making the decisions about whether they had a relationship with the other parent. That has to also be seen in the context of B making serious accusations against her father and C having health problems. Whilst it might be encouraging to see that each parent said that they were going to ensure that the children were supported in having a relationship with the other parent, the background and context of these proceedings would give little prospect of that being likely.
These parties need to change and the court cannot effect it. As it stands, two children are close to being beyond the control of the court. Making orders would give no guarantee of any form of relationship occurring. These parties live in country Victoria and each has to travel if these children are to have any sort of relationship with not only their siblings but with their other parent.
B has already left school and is in employment. What possible prospect is there that she would comply with any court order even if the court made an order. How would equal shared parental responsibility work in respect of B?
Section 60CC(5) of the Act provides that a court may, but is not required to, consider the relevant factors that determine best interests principles in s 60CC, arising out of circumstances where the parties have reached agreement about orders.
In Harris v Caladine (1991) FLC 92-217 Brennan J remarked at 78,473:
The very purpose of procuring the making of orders by consent is to ensure that the terms agreed are susceptible as a curial order.
His Honour also remarked that consent orders made by a judge were an exercise of the judicial power of the Commonwealth. Consent orders dispose of the issues between the parties and have always been regarded as a judicial determination of those issues notwithstanding the consent of the parties.
Harris v Caladine was a case relating to property but the observations of the court remain relevant in a parenting case. In respect of the property proceedings, Brennan J referred to the fact that the court should only make the orders if they were just and equitable. I draw from that, the observation that in respect of a parenting matter, the court should only make the order if it is satisfied that it is in the best interests of the children. Brennan J observed that the court in a property case was obliged to consider the matters set out in s 79(4) but the difference with a parenting case is that the court is not obliged to consider all of the matters that determine best interest principles but may do so. The whole purpose of a parenting order on a final basis is to ensure that as far as practicable, children are removed from ongoing litigation and can settle into a routine. It is readily acknowledged that children change and so must their living circumstances but it must also be seen that a court making final orders should anticipate that the parties will not be back regardless of the ages of the children on the basis that the determination should set the parameters for change in the future rather than having the matter relitigated as has clearly occurred here.
It was Brennan J in Harris who referred to the parties contracting with each other about what each of them would do: each party had then wanted that contract embodied in a court order. His Honour referred to the fact that the court would only interfere with such an order on the same grounds as it would have done so with any other contract. In circumstances where s 60CC(5) permits the court to consider the best interests principle, in my view, it should do so where there is evidence that is at odds with the proposed order. The court should then examine the factors to see whether there is a realistic possibility that the children will benefit. If not satisfied, the order proposed should not be made because it could not be seen to be proper if the proposals are inconsistent with s 60B, s 60CA and s 60CC (see below) notwithstanding the contractual nature of the parties’ agreement. That must be so where the history of the matter also shows the parties have little regard for the law, no respect for each other and where there is the real prospect of an ongoing dispute. Ongoing disputes may be inevitable but orders are put in place to dictate what is best for children. The tenor of s 60CC is to end litigation.
Normally the court would look at the question of parental responsibility, parental capacity, the views of the children and the impact on the children of being separated from a parent. When the evidence is so fresh, as it is here, and where determinations could not be made because of the allegations and counter-allegations without testing the evidence on the balance of probabilities, a cautious approach is necessary but it ought not be simply accepted that orders should be made by consent with such fresh (and serious) allegations and an appalling litigation history where previous approaches to orders have been given scant regard.
For example, where each of the parties denies using drugs but insists that the other is still doing so, how does the court determine the responsibility of a parent?
The power of the court to make a parenting order comes from s 65D of the Family Law Act 1975 (Cth) (“the Act”). The court there is mandated to only make a parenting order if it is proper to do so. The types of parenting order are found in s 64B of the Act. In deciding what is in the best interests of a child (s 60CA), and hence also what is proper, the court must be guided by the factors set out in s 60CC. But the aspirations of the parliament are set out in s 60B of the Act and those objections and principles must be kept in mind when endeavouring to work out what is best for children and in terms of an order, what is proper.
Section 60B provides as follows:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
If I accept that the facts are indicative of the lives these children have led, and not accepting that any “epiphany” has occurred, how could the court be satisfied that those objects and principles could be achieved? The objects and principles are aspirations but I could not make any findings here and do not have to because the parties contracted with each other to avoid the matter proceeding to trial. The difficulty for the parties however is that I am not satisfied that what they have proposed is in the best interests of any of these children. The only conclusion I could draw from what they have proposed is that they are this time going to go to some form of therapeutic counselling to resolve their problems and those of the children to achieve some of the objects and principles in s 60B of the Act. However, the court has been told that before.
I have emphasised the word “proper” in s 65D(1) of the Act and that word was considered by the Full Court in VR v RR [2002] FamCA 320; (2002) FLC 93-099 at 88,940 when the court observed that the overall framework of the legislation could be seen to provide that both parents have parental responsibility for their children but that the court may take away an aspect of that responsibility if it was proper to do so. Significantly, the Full Court went on to say that the word “proper” connoted a very wide area of discretion and that interference with the care of a child in the way that a parent considered was appropriate:
Should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
In my view, there is no evidence that the proposed orders would have promoted the welfare of these three children at all.
In Bondelmonte v Bondemonte (2017) FLC 93-763 the High Court observed that a parenting order involved the exercise of judicial discretion which in turn involved an overall assessment of a number of considerations either statutorily prescribed or considered by the court to be relevant. The assessment of those considerations in s 60CC to which I have referred was said by the High Court to involve judgments:
In respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of a child.
In U and U (2002) FLC 93-112 the High Court confirmed that the court is not, on any view, bound by the proposals of the parties. That is a reference to a contested parenting dispute but in my view, it applies equally to one in which the parties have “contracted” with each other or “consented” to those orders being made. Having said all of that, Kirby J in U and U approved of the statement made by Sachs LJ in Poel [1970] 1 WLR 1469 that once custody was working well, the court should not likely interfere with “such reasonable way of life as is selected by that parent to whom custody has been rightly given”. In my view, the emphasis on a reasonable way of life is difficult when one observes the background and context in which these children have lived, and currently live, giving little confidence because of the history, that things will change.
As Hayne J observed in U and U:
[176]It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act.
His Honour was there dealing with an international relocation case and parental movement but his Honour ended with the following statement:
It is the interests of the child which are paramount, not the interests or needs of the parents let alone the interests of one of them.
Looking at all of the background material in this case has not been easy. The evidence put before the court has not been tested. It is timely to remember that it was the parties who asked the court to read into evidence the material prior to the commencement of the trial that they intended to rely upon. Counsel for the Independent Children’s Lawyer relied upon the report of the family consultant. It was not suggested by any party that the family consultant was in error.
The determination of best interests is reflected in ss 60CA and S 60CC of the Act. With the caution that findings cannot be made here because the evidence has not been tested, it is difficult to assess what is in the best interests of these three children. That said, each parent would accuse the other of not meeting any such best interests test.
The primary considerations are that there is a benefit to all of the children in having a meaningful relationship with both of their parents. I consider I have said sufficient to make clear that at present, and without significant change, that is not possible. Another primary consideration is the need to protect the children from physical or psychological harm in being subjected to, or exposed to, abuse, neglect or family violence. There is no evidence about how the mother is dealing with the allegations of B. There is no indication of how the father is dealing with the fears of C. There is every indication of a need to keep the parties apart from one another as they have suggested themselves by the proposal about a handover. How is the “epiphany” working there? Where is the indication that the cudgels have been put down? How would counselling and therapy work here without an indication that co-operation will follow towards getting the previous impossible tasks commenced? How will the mother get B involved if she is now employed? What will happen to C’s relationship with the mother if he continues not to be encouraged to sort out those demons?
The views of the children are clear but what prospect is there of any time occurring with the other parent if the children have a choice? Have they been empowered already and how are the parents intending to undo those difficulties? The court is not told.
The nature of the relationships of the children with their parents is now well documented. The sibling relationships remain unclear. How are those problems identified by the family consultant to be addressed? Is C at risk with B bearing in mind his apparent unhappiness with his sibling.
The court is required to consider the extent to which each parent has participated in making decisions about major long-term issues as well as arranging time. The evidence about the latter is full of accusations and the former is relatively silent. Where is the evidence about the mother attending the appointments for C?
Of the three children, the only one who showed she was conflicted about being with both parents was D. What happens to D when she is with her mother? The observations of the family consultant about the parting of mother and daughter were illuminating. The child was fine but the mother not. The simple explanation about the tyre is a classic “out of the mouths of the babe” moment. How much is this child missing her mother and what is the effect of separation?
There are practical difficulties in all of these children spending time with and communicating with the other parent. There are geographical difficulties as both have to travel some distance. Each has limited resources. The mother did not want the father to know the precise details of her whereabouts yet that is the residence to which D will be going. Over-holding has occurred in the past; will it occur again if the mother considers that what she is told does not satisfy her?
As can be seen, there are many unanswered questions. The “epiphany” is not so obvious. Based on the unanswered (and possible unanswerable) questions, I could not make a finding about whether the proposals were good for these children.
There are serious questions about the capacity of the parents to provide for the emotional and intellectual needs of the children. School records indicate a better performance of late but is that likely to continue?
The allegations about drugs (indeed admissions) and abuse give rise to questions about what attitude to these children and to the responsibilities of parenthood is demonstrated by each of the parents. It is timely to remember that this is not the first time orders have contemplated counselling. It is time for the parents to prove what they say can be a reality.
Family violence has many facets and I refer again to the handover issues to indicate that there are unresolved problems. There is a history of reliance upon intervention orders; that is, the parents need the intervention of the State and the assistance of police to resolve their issues in a civilised way. The State has put enormous resources into this family and Federal court system has done so as well. As all counsel indicated that they were funded by Legal Aid, the parties have also had that benefit. Past evidence indicates that the prospects of change are limited but why should the court “rubber stamp” orders? Should not the parties “contract” with one another if they have had an “epiphany”?
One consideration in s 60CC is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. That appears to have been the case twice before yet the orders soon broke down. The nature of the evidence presented here would confirm that the last lot of orders were not seriously intended to keep not just the parents out of court or to remove the children from the litigious environment that their parents seem to relish.
Thus, I could not find that the sorts of concepts that these parties were talking about in their proposed consent orders would enable me to make a finding that the orders were in the best interests of the children.
Section 63C of the Act provides that the parties can enter into a private arrangement in the form of a parenting plan in the same contractual sense to which I have earlier referred. This is the best test of whether the parents are really serious about the “epiphany” to which counsel referred. If they contract with one another to fulfil those tasks with an eye on s 60B, and either is dissatisfied with the other, there would be a genuine basis to bring an application before the court for parenting orders but one would imagine their proposals then would be nothing like what is now being proposed because of a “breach of contract”.
For all those reasons, I consider that the court should not make consent orders in this case simply because the parties have reached an agreement.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 December 2017.
Associate:
Date: 15 December 2017
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