Collins and Timms
[2011] FMCAfam 907
•1 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & TIMMS | [2011] FMCAfam 907 |
| FAMILY LAW – Children – death of mother – issues of co-parenting between father and maternal aunt. |
| Family Law Act 1975, ss.60B, 60B(2), 60CA, 60CC, 61DA and 65DAA |
| Dennett & Norman [2007] FamCA 57 D & F [2001] FamCA 382 Kay & Jasper [2007] FamCA 1646 Rice & Miller (1993) FLC 92-415 Malcolm & Monroe & Anor (2011) FLC 93-460 |
| Applicant: | MR COLLINS |
| Respondent: | MS TIMMS |
| File Number: | ADC 214 of 2010 |
| Judgment of: | Cole FM |
| Hearing dates: | 9, 10 and 11 March and 18 May 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 1 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Noble |
| Solicitors for the Applicant: | White Berman & Co. |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Barr Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Hemsley |
| Independent Children’s Lawyer: | Legal Services Commission of South Australia |
ORDERS
Noting that in these orders in the event that the handover occurs when it is not a school day, where the reference is to the conclusion of school that shall be taken to read 5.00pm and where the reference is to the commencement of school the time shall be taken to read 9.00am
The parties have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2009.
The children live with the father as follows:
(a)as from 8 September 2011:
(i)from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Thursday.
(b)as and from 1 December 2011:
(i)from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.
(c)as and from the beginning of Term 1 2012:
(i)from the conclusion of school on Wednesday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.
(d)as and from [date omitted] 2013 (when [Y] turns 4) in each alternate week from the conclusion of school on Friday (or 4.30pm if a non-school day) until the same time on the following Friday;
(e)as and from the week commencing 4 July 2013 in each alternate week from the conclusion of school on Thursday to the commencement of school on the following Friday (being eight nights);
(f)on Father’s Day between 10.00am and 5.00pm;
(g)from 12 noon on 24 December 2011 until 3.00pm on 25 December 2011 and between the same time in each alternate year thereafter; and
(h)from 3.00pm on 25 December 2012 and 5.00 pm 26 December 2012 and between the same time in each alternate year thereafter.
The children live with the maternal aunt (“the aunt”) at all other times including:
(a)from 10.00am to 5.00pm on Mother’s Day;
(b)on the birthday of the children’s mother Ms Collins (13 March) between 10.00am and 5.00pm (if a non-school day) and 3.00pm and 7.00pm (if a school day);
(c)from 3.00pm on 25 December 2011 until 5.00pm on 26 December 2011 and between the same time in each alternate year; and
(d)from 12 noon on 24 December 2012 until 3.00pm on 25 December 2012 and between the same time in each alternate year thereafter.
On each of the children’s birthdays the children live with the party who does not otherwise have the children in their care for a period of three hours at times to be agreed between the parties save and except in the event where the children are interstate on holidays on their birthday then and in such event the party who does not otherwise have the children in their care shall communicate with them by telephone.
As and from the Christmas school holidays for 2014 the parties be at liberty to vary the week about arrangement for the holidays such that the parties have the children in their care for a two week and a one week block of the Christmas school holidays thereafter, save as set out in these orders for special occasions.
The orders made for the parties to spend time with the children on special occasions shall apply in lieu of the weekly time that the children spend with the parties.
Handovers shall occur as follows:
(a)where a handover occurs on a school day and coincides with the conclusion of school then same shall occur at the children’s school inside the school grounds; and
(b)otherwise all handovers shall occur at the Children’s Contact Service, [suburb omitted] or where unavailable inside the [omitted] Police Station.
The parties be at liberty to take the said children interstate during the time they are in their care provided that fourteen days written notice is provided to the other party including an itinerary of travel.
The parties be restrained and an injunction be granted restraining each of them from removing the said children from the Commonwealth of Australia without the express written permission of the other party or an Order of this Honourable Court.
The parties do forthwith arrange for co-parent counselling with Relationships Australia, Centacare or such other like organisation with a view to improving their communication skills and to discussing matters relating to the children generally and that:
(a)the parties initially attend individual counselling appointments (with the same counsellor);
(b)thereafter the parties attend joint appointments with the same counsellor;
(c)the parties continue to attend regular co-parent counselling on not less than four occasions each year and on such further occasions as may be recommended by the counsellor; and
(d)the parties share equally in the cost of all joint counselling appointments (with the parties to bear the cost of their own individual appointments).
The parties do forthwith agree on an independent counsellor for the child [X] (and [Y]) to attend upon for therapeutic counselling to discuss any issues or concerns that may arise from time to time for that child.
The save as to the counsellor referred to in paragraph 16 aforesaid, the parties be and are hereby restrained by injunction from allowing or permitting the children to attend upon any counsellor or psychologist save and except with the written consent of the other party.
The proceedings be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Timms is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 214 of 2010
| MR COLLINS |
Applicant
And
| MS TIMMS |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] and [Y] are the children the subject of these proceedings. Their parents separated in July 2009, the children remaining with their mother.
At the date of separation, their mother was being treated for cancer. Their maternal aunt (“the aunt”) moved in to assist with their care. Sadly, their mother died in November 2009.
The father instituted proceedings, not having seen the children since July 2009.
The proceedings came before this Court in 2010. A series of orders were made in the course of 2010 increasing the father’s time with the children. The matter proceeded to trial on 9, 10 and 11 March 2011 and concluded on 18 May 2011.
The parties now agree that the father’s time with the children should progress to a shared care arrangement, being a week about. They cannot agree however, on:
a) the pace of that progression; and
b)whether it should continue to where the father is the primary caregiver and the aunt is spending substantial and significant time with the children.
Chronology
The children’s mother, Ms Collins and their father met and commenced a relationship in 1998.
They emigrated to Australia in 2000.
In 2004, [X] was born. [X] is currently aged seven.
In 2006, the children’s parents married.
In 2009, [Y] was born. She is now aged two and a half.
In late May 2009, the children’s mother was diagnosed with terminal cancer.
On 11 July 2009, the children’s parents separated. There are allegations regarding a series of violent incidents which will be addressed later in these reasons.
On 30 July 2009, an interim domestic violence restraining order was made which was subsequently confirmed on 17 September 2009.
On 4 November 2009, the parties attended mediation and entered into a parenting plan providing for the father to spend supervised time with the children at the Children’s Contact Centre.
On 10 December 2009, the father obtained a report from Dr C as to his anger management issues.
In 2010, the mother died.
On 21 January 2010, the father instituted proceedings.
Whilst there are issues as to:
a)the circumstances under which the father left the former matrimonial home;
b)the father’s request to spend time with the children which was not granted;
c) the father’s delay in instituting proceedings; and
d)the father’s institution of proceedings the day after the mother’s death.
it is not disputed that from the date of separation until 14 February 2010, the father was unable to see his children.
It is also not disputed that the aunt was residing in the home with the mother and assisting with the care of the children. She assumed the care of the children upon the mother’s death in January 2010, and in the absence of the father in July 2009 and the declining health of the mother would have taken a significant role in caring for the children prior to her death.
At the date of the mother’s death, [X] was aged five years and some seven months whilst [Y] had not yet turned one.
The parties’ proposals
Orders were made by consent on 11 March 2011 that:
1.Pending further order the father spend time with the children [X] born [in] 2004 and [Y] born [in] 2009 as follows:
a)from 4.30pm on Friday until 4.30pm on Sunday for 3 weekends out of 4 commencing on 18 March; and
b)from 4.30pm on Tuesday until 4.30pm on Wednesday in each week.
The respective proposals of the parties for the next step in this matter each involve a graduated increase of the father’s time. They are as follows:
| Applicant Father | Respondent Maternal Aunt |
| 1 July 2011 | 1 July 2011 |
| 1. From the conclusion of school or 4.30pm if a non-school day on Friday until 5.00pm on Sunday for three weekends out of four. 2. Each alternate week from the conclusion of school (or 4.30pm if a non-school day) on Tuesday until the conclusion of school on Thursday. | 1. From the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend. 2. Each alternate week from the conclusion of school on Tuesday until the conclusion of school on Thursday. |
| As and from 16 December 2011: The children reside with each party on a week about basis. | As and from the beginning of Term 4 2011: 1. From the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend. 2. Each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday. |
| As and from Easter 2012: The children live with the father and spend time with the maternal aunt on alternate long weekends and half of each school holidays periods. | As and from the beginning of Term 1 2012: 1. From the conclusion of school on Wednesday until 5.00pm on Sunday each alternate weekend. 2. Each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday. |
| As and from [date omitted] 2013 (when [Y] turns 4): 1. Each alternate week from the conclusion of school on Friday (or 4.30pm if a non-school day) until the same time on the following Friday. | |
| The children live with the maternal aunt at all other times. |
Whilst the Independent Children’s Lawyer supported an increase in the father’s time, he did not express a definite view.
Matters agreed
It is agreed that up to and including a shared care arrangement with the children spending equal time with each party, that there should be equal shared parental responsibility. In the event that the Court should see fit to move the children to live with the father, then the father submits that he should have sole parental responsibility.
The parties agree that orders can be made as follows:
a)that as and from the Christmas school holidays in 2014/15, the parties be at liberty to vary the week about arrangement during the Christmas school holidays such that the parties have the children in their care for a fortnight block and a one week block each;
b)for the children to spend time in the care of the parties on the following special occasions:
i)with the father on Father’s Day between 10.00am and 5.00pm;
ii)with the maternal aunt on Mother’s Day between 10.00am and 5.00pm; and
iii)on the birthday of the children’s mother Ms Collins ([omitted]) between 10.00am and 5.00pm if a non-school day and 3.00pm to 7.00pm if a school day
c) with the father:
i)from 12 noon on 24 December 2011 until 3.00pm on 25 December 2011 and between the same time in each alternate year thereafter; and
ii)from 3.00pm on 25 December 2012 until 5.00pm on 26 December 2012 and between the same time in each alternate year thereafter
d) with the maternal aunt:
i)from 3.00pm on 25 December 2011 until 5.00pm on 26 December 2011 and between the same time in each alternate year thereafter; and
ii)from 12 noon on 24 December 2012 until 3.00pm on 25 December 2012 and between the same time in each alternate year thereafter
e)on each of the children’s birthdays with the party who does not otherwise have the children in their care for a period of three hours at times to be agreed between the parties save and except in the event where the children are interstate on holidays on their birthday, then in such event the party who does not otherwise have the children in their care shall communicate with them by telephone;
f)as to handover:
i)that wherever handover occurs on a school day and coincides with the conclusion of school then the same shall occur at the children’s school inside the school grounds; and
ii)otherwise all handovers shall occur at the Children’s Contact Centre, [suburb omitted] or where unavailable, inside the [suburb omitted] Police Station
g)that the parties be at liberty to take the said children interstate during the time they are in their care provided that fourteen days written notice is provided to the other party including an itinerary of travel;
h)that the parties be restrained and an injunction is hereby granted restraining each of them from removing the said children from the Commonwealth of Australia without the express written permission of the other party or an order of this Honourable Court;
i)that the parties do forthwith arrange for co-parent counselling with Relationships Australia, Centacare or such other like organisation with a view to improving their communication skills and to discuss matters relating to the children generally and that:
i)the parties initially attend individual counselling appointments (with the same counsellor);
ii)thereafter the parties attend joint appointments with the same counsellor;
iii)the parties continue to attend regular co-parent counselling on not less than four occasions each year and on such further occasions as may be recommended by the counsellor; and
iv)the parties share equally in the cost of all joint counselling appointments (with the parties to bear the cost of their own individual appointments).
k)the parties do forthwith agree on an independent counsellor for the child [X] (and [Y]) to attend upon for therapeutic counselling to discuss any issues or concerns that may arise from time to time for that child; and
l)that save as to the counsellor referred to in paragraph 10 aforesaid, the parties be and are hereby restrained by injunction from allowing or permitting the children to attend upon any counsellor or psychologist save and except with the written consent of the other party.
The evidence
The father relies on:
a)his Application filed on 21 January 2010;
b)his Trial Affidavit filed on 23 February 2011 and the exhibits thereto;
c)the Trial Affidavit of Ms O filed on 4 March 2011;
d)the Family Assessment Reports of Mr R; and
e)the communication books between the father and the aunt.
The aunt relies on:
a)her Trial Affidavit filed on 25 February 2011; and
b)the Trial Affidavit of Ms M filed on 25 February 2011.
Mr R, Mr Collins and Ms Timms gave evidence and were cross-examined.
Biological parent
Reference was made to a number of authorities by Counsel on the issue of whether or not a biological parent should have preference over another when considering parenting orders in respect of children.
Counsel referred me to the case of D & F [2001] FamCA 382 being a judgment of the Full Court delivered on 19 June 2001.
In that matter, their Honours in dismissing the appeal noted that:
·There is danger in looking too closely to the sociological and psychological writings to determine the foundation of the observation that parenthood is a significant factor in determining with whom the children should live. It is a factor arising from common human experience. It is precisely this non-demonstrable important factor which was heavily relied upon by Purdy J.
·There is a clear need in each case to understand the ramifications of applying the factor of parenthood. It may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
Counsel for the father referred me specifically to paragraph 56 of the judgment which echoed the sentiments set out above in that the Court stated that:
56.There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
In the matter of Dennett & Norman [2007] FamCA 57 being a judgment delivered on 13 February 2007, reference was made by the maternal aunt to paragraphs 53 through to 60 in which the Court engaged in a discussion on the ground of Appeal that the learned Trial Judge had acted on a wrong principle in failing to proceed on a presumption in favour of the child residing with her parent, rather than with other parties such as the child’s step-grandmother. The Court in that matter adopted the position of the Court referred to in the matter of D & F (supra) referred in the above paragraph:
The Court declined to accept the submission that the line of authority referred to was wrong and confirmed that there is no presumption in favour of a biological parent.
Finally, reference was made to the matter of Kay & Jasper [2007] FamCA 1646 being a decision of Her Honour Justice O’Reilly.
Counsel for the Independent Children’s Lawyer referred me to paragraph 67 of Her Honour’s judgment and in particular, a line in paragraph 30 of the judgment quoted by Her Honour from the matter of D & F [2001] FamCA 382 that:
Namely that the fact that one party was a mother would merely be an important factor to be considered but did not involve any particular principle.
The discussion referred to a line of authority and included decisions such as Rice and Miller (1993) FLC 92-415 where the Full Court observed “the fact that parenthood is to be regarded as an important and significant factor”. The argument was that the provisions of the amended Family Law Act had, in effect, statutorily overturned the decision in Rice & Miller and the authorities referred to. That argument was rejected.
I accept the submissions of Counsel and will deal with the matter accordingly.
The evidence
Mr R gave evidence over the course of two days.
His reports published on 6 September 2010 and 14 December 2010 were accepted into evidence without objection.
He noted in his reports and confirmed in his evidence that the emotional attachment of the parties with the two children appeared to be equal and their parenting skills appeared equal. Each was able to apply those skills equally.
It is fair to say that throughout the course of his evidence, his recommendations changed somewhat, however this is no criticism of Mr R. Through the course of his evidence, the parties put a number of proposals to him and he addressed those proposals from time to time.
It is notable that Mr R considered the positions of [Y] and [X] to be different. [X] would have a memory of his mother whilst [Y]’s memory would be indistinct if at all. It was simply a function of her age that it could be said to be more in the role of her mother.
Mr R noted that the children had lost their father and mother about the same time. They had now regained their relationship with their father and it was important to rebuild that relationship. The father’s involvement in the children’s lives was essential.
In answer to a question that I put to him, Mr R confirmed that it was critical for the Court when making a decision to have regard to who could put the past aside and move on for the sake of the children in the best possible manner.
There is no dispute that Mr R recommended a progression to equal shared care with the recommendation being that that progression be gradual and cautious. In addition, he commented that he would like to see how things were going before taking the next step. It was his evidence that the attitudes of the parties were the most important factor in determining the next step.
It is notable that each party proposes the progression to shared care be undertaken at a faster rate than that suggested by Mr R.
The father
The father gave evidence in a measured and clear manner.
He was criticised by Counsel for the Independent Children’s Lawyer for minimising the incidents of violence alleged by the aunt.
Reference was made to the Children’s Contact Centre report of 16 June 2010 and the report of Dr C which contrasted with the evidence provided by the father. I will address this further in these reasons.
At the same time, it was noted that the father’s care of the children was to some degree corroborated by the evidence of the aunt.
He was the subject of some criticism for failing to apply to spend time with the children prior to the mother’s death. His answers were I considered appropriate responses, namely that:
a)he considered there to be a process in place whereupon the parties had agreed to attend mediation then had subsequently agreed a plan for the next step namely the use of the Children’s Contact Centre; and
b)he did not, at a time when the mother was under great stress from the diagnosis of terminal cancer, wish to inflict any further pain.
It is not disputed that he was not permitted to attend upon the mother when she died. It is also not disputed that he was not made aware of where her ashes were put until some time later when he made independent enquiries and was able to obtain the location.
He is the subject of criticism for taking an aggressive stance through filing of the Application the day after the mother died. I do not accept this.
I will address these matters in further detail in these reasons.
The maternal aunt
Throughout the course of these proceedings, the aunt has made it clear that she considered the father to be unsuitable to have the primary care of the children.
Counsel for the Independent Children’s Lawyer points out that the orders made to increase the father’s time over the course of 2010 when one looks back at the chronology of the proceedings, can be equated to “almost like pulling teeth”.
The aunt’s Trial Affidavit contains a litany of complaints against the father and up to and including the filing of her Counsel’s Case Outline, where she was seeking orders which in effect meant that the children spend time with the father on alternate weekends and on every other Tuesday night, with three consecutive nights during each week of the school holidays until [Y] reached the age of four when the time was to be increased to one half of all school holiday periods on a week about basis.
When the matter subsequently came on for trial, it then became evident that on either the first or second day of trial, she had a change of heart and adopted a new proposal that acknowledged a movement to shared care. When subjected to cross-examination by the Independent Children’s Lawyer, the terms of that proposal became slightly more generous.
It is an issue for the Court as to whether the aunt after such a lengthy period of bitter opposition to the father, can be seen to have had a genuine change of heart.
The law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the 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)the 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).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and 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.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the 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;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)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;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
Application of above principles to persons other than a parent
There was no suggestion from Counsel that the above principles should not apply to the paternal aunt. The Full Court in Malcolm & Monroe & Anor (2011) FLC 93-460 stated:
97.In summary, to the extent that it is asserted that some of the considerations listed in section 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the section 60CC factors which specifically refer to “parents” (s60CC(2)(a), s60CC(3)(c), s60CC(3)(e), s60CC(3)(g), s60CC(3)(h) and s60CC(3)(i) must only relate to parents (in the strict sense) is a submission we do not accept, s60CC(3)(m) would permit and, indeed, almost requires a consideration of matters set out above in relation to persons who are other than parents.
The child’s best interests
Having regard to the authorities referred to above, I will turn now to a consideration of the matters set out in section 60CC of the Act adapted to the facts of this case being an application for parenting orders by the father and the aunt.
The benefit of the child having a meaningful relationship with either party (section 60CC(2)(a))
Prior to the commencement of the trial there appeared to be an issue on the part of the aunt as to the benefit of the father’s relationship with the children. Her documents filed with the Court were notable for the negative view that they took of him. Furthermore, the approach taken throughout the course of these proceedings was to adopt a very restrictive approach to his time with the children.
That changed on either the first or second day of the trial and the issue became one of how the relationship should be managed, not whether one should occur.
The father for his part recognises the importance of the aunt in the children’s lives. The issue for him is whether that time with the children should be shared equally or result in an arrangement where he has the primary care.
Mr R notes at paragraph 40 of his second report that:
40.Both parties consistently maintained their equal parenting abilities of the children.
He further notes at paragraphs 42 and 43 that:
42.The maternal aunt appears to be the primary parenting figure while subject to permission procedures to remain in Australia.
43.The father’s mutual emotional attachment with the two children appears to be equal to that observed with the maternal aunt. There is clearly a benefit to the children having a relationship with both parties.
SECTION 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This was, from the commencement of the proceedings, a significant issue. The allegations against the father were serious and were maintained until closing submissions.
The father was subjected to robust cross-examination about his conduct whilst the parents were together and when they separated.
It is clear that things were not good for the parents at that time. The mother had been diagnosed with terminal cancer (liver, breast and lymphatic cancer), the parents’ families of origin were based in the main in the United Kingdom, the mother’s family had not unsurprisingly come to help and were either residing in or visiting the house on a regular basis, the children were five and approximately five months at the time that the diagnosis was received.
Each party and the supporting adults were coming to terms with the foreshadowed loss of the mother whilst caring for two very young children.
It is conceded that the pressure on the parents and the supporting family was significant.
The aunt alleges that the parties separated after a series of violent incidents. The father does not concede this.
On 6 July 2009, the mother was hospitalised for a high temperature. The aunt told the father who was caring for the children to take the mother’s overnight bag and visit her in hospital. He asked to stay at home and care for the children. She abused him and took the bag herself. In front of his son, she says:
“I leaned forward and whispered in the father’s ear so that [X] could not hear me and said ‘you are the most selfish cunt I have ever met in my entire life”. ( paragraph 25(e) Trial Affidavit)
She later conceded in the course of her evidence that this behaviour in front of the child was not appropriate.
On 8 July 2009, the aunt’s evidence is that she overheard a dispute between the mother and father. She intervened and said to the father “you’re a selfish bastard you are”.
The parties agree that the father started to walk down the hallway to get out of the house. The aunt placed herself in front of him walking backwards telling him he could not go out as he needed to take [Y] to childcare.
She alleges he started hitting her on the head. He alleges she pushed him back into the wall and he banged his head. He put his arms out and may have connected with her. The mother stepped in and separated them.
The aunt cannot be proud of the part she played in the events that led up to this incident. At the same time, the father is, I consider, rightly criticised by the Independent Children’s Lawyer for attempting to minimise his reaction.
He then went for a walk. On his return home he rang a counsellor (supplied through work) and made an appointment.
On 11 July 2009, he was asked to leave the home and did so, however, not without, he says, the intervention of the wife’s mother who chose the moment to tell him what she thought of him.
The aunt complained to the police about the incident at the time – July 2009. She elected not to proceed with it at the time, however, subsequently revisited the complaint in February 2010.
The above version of events is a rough summary of what happened.
I do not consider it necessary to make any particular finding in respect of the events save to say that it was clear from the parties’ evidence that they were all under pressure. The father’s wife (the children’s mother, and the aunt’s sister) was about to die. The mother’s family gathered around to help however there was little evidence, on their version of the events, of there being any empathy for the father’s position. To say the atmosphere in the house would have been tense is an understatement. Consequently the father left the home and did not see his young children for some months.
Post separation, it is notable that there is no complaint made of the father’s behaviour. His wife was dying, he was unable to see his children or his wife prior to her death. Following her death, he was not invited to the funeral or told where she was buried.
He did not institute proceedings until the mother had died. I accept his evidence that he did not want to cause more pain while she was alive.
Once proceedings were on foot, he faced stiff opposition to increasing his time with the children “like pulling teeth”. The aunt maintained that he was an angry and violent man and yet, had to concede at trial that there was nothing she could complain of since he left the home.
I consider that neither party can be proud of their conduct at the time separation.
The conduct of the aunt following separation isolating the father from the children is a matter for concern.
Once the parties separated, the evidence appears to be that the father sought to pursue his options, in the whole, through the appropriate channels, rather than take matters into his own hands.
The conduct of the father post-separation, under such severe and continuing pressure, favours a conclusion that the children are not at risk of psychological or physical abuse or from being exposed to it.
The aunt’s recent support for a move to shared care supports this conclusion.
I therefore do not consider there is any need to protect the children from physical or psychological harm or being exposed to such conduct.
SECTION 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] is aged seven and [Y] two. [X]’s views whilst noted, have limited weight given his age. Mr R notes at paragraph 38 of his report dated 14 December 2010 that:
38.[X] was interviewed alone at the maternal aunt’s residence.
39.He was articulate and certain of his views and attitudes:
Want more time with my dad … want to sleep at dad’s house … still want to live with [Ms Timms] (maternal aunt) and visit dad … I’ll be alright with dads sleeps, won’t miss [Ms Timms].
40.These comments were obtained prior to overnight time commencing. That began in December and as at the date of trial was proceeding well.
SECTION 60CC(3)(b) - the nature of the relationship of the child with:
(a) each of the parties being the father and the aunt
I have already commented that Mr R noted in his second report that “the father’s mutual emotional attachment with the two children appears to be equal to that observed with the maternal aunt (para 43)”.
He also noted at paragraph 66 of his first report that similarly, the two adults’ parenting skills appear of equal quality that should be utilised for the children’s welfare.
He confirmed this in the course of his evidence. He was not challenged.
(b) other persons (including any grandparent or other relative of the child)
There has clearly been significant involvement from the parties’ families. Neither party raised the children’s relationship as an issue, it being noted for example, how well the children got on with the aunt’s sister and her children.
SECTION 60CC(3)(c) - the willingness and ability of each of the parties to facilitate, and encourage, a close and continuing relationship between the child and the other party
I have commented on the concerns I have regarding the late found willingness of the aunt to encourage a close and continuing relationship between the children and the father.
Whilst to her credit she did concede that a number of her actions during the course of the proceedings were inappropriate, the concession did not come until she entered the witness box.
Her case outline proposed that the father have alternate weekends with the children and every other Tuesday night, with school holiday time to increase from three nights to half school holidays.
She did submit that it was the view of the children’s mother and my family that “the children should be raised by me primarily”.
Prior to her giving evidence there was little to show that the aunt had considered the position of the father in respect of his loss and in respect of his position as the children’s father. He had lost his marriage, his wife and then his children, and yet for some time, he continued to be criticised by the aunt.
Her Trial Affidavit could best be described as negative, being critical of the father in all respects.
She conceded for example that she did not speak to the father at handovers. She did not acknowledge he was there. These actions occurred in the presence of the children and as she later conceded in the witness box, were unacceptable.
I accept that the father acknowledges the importance of the aunt to the children. My concerns relate to how quickly he seeks to reduce her time with them.
SECTION 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) the father or the aunt
Regardless of how it came about, it is impossible to ignore the significant role the aunt has had in the lives of the children.
Mr R found there to be equal attachment between the children and the parties. I have also noted his comment that the aunt was the primary parenting figure. The role of the aunt in [Y]’s life is particularly significant.
Care must therefore be taken in determining what time she should spend with them in the future as she cannot be suddenly excluded from their lives leaving the children to cope with another loss and the change that brings.
At the same time, the re-introduction of the father into their lives is now conceded to be beneficial by the aunt. It is supported by the report writer. It is the pace of change that needs to be determined.
Mr R recommended a conservative progression in time. The caveat on that recommendation is the parties’ ability to assist the children with the transition. Each has indicated that they will make an effort to ensure it works. I accept their assurances and would therefore consider, subject to those assurances, that the effect of the changes would be positive, increasing the children’s time with their father.
SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a party and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This was not raised as an issue once it became clear the aunt had been granted a visa to remain in Australia.
SECTION 60CC(3)(f) - the capacity of the father and the aunt to provide for the needs of the child, including emotional and intellectual needs
Prior to the parents separating, whilst there may be an issue as to the extent of the care, Counsel for the Independent Children’s Lawyer submits there was evidence to suggest that the father was caring for the children at some level, was trusted to do so and appeared capable of doing so. I accept that submission.
The aunt then stepped in to care for the children at a critical time. The parties had separated, the children’s mother was dying and the issue of where they would live had not been resolved.
Her presence at that time and what it meant to the children, especially one as young as [Y], cannot be ignored. Her understanding of her role and her subsequent conduct are cause for concern.
The children were in the process of losing their mother. The separation meant that they had to a degree lost their father. It was important for the children’s sake that the parties’ differences be put aside. She was unable to do this.
To be fair to the aunt, the father admits that at the time he was a mess. He did however seek help attending upon a counsellor and subsequently upon Dr C to address his issues.
The evidence of the father’s efforts including the report of Dr C was available to the mother in early 2010. In spite of this she continued to hold the view that he was callous throughout the illness of the mother; aggressive and selfish.
She could not see until questioned at trial that the father may himself have been under significant pressure.
As mentioned above in these reasons she maintained a position throughout these proceedings where for example:
(a)neither she nor her family advised the father where the mother was buried. The children were taken to the mother’s grave and yet the father did not know, putting them in a position where they had information that should have been conveyed to the father;
(b)save for a meeting at “[omitted]” where she conceded that she verballed the father her communication with the father was minimal and confined in the main to the communication book; and
(c)her communications with the father and her criticism of his parenting in the communication book were at best an attempt to micromanage the children, and certainly conveyed a lack of respect for his parenting skills.
She conceded that her conduct in taking [Y] to the hospital in respect of a suspected asthma attack instead of allowing the husband to do this, he being the one with [Y] at the time was inappropriate
She did not speak to the father at handovers or acknowledge that he was there. She conceded that her conduct on these occasions in front of the children was inappropriate.
Her evidence was that the children still needed a mother figure in their lives and “that figure is me”. She went on to say “I don’t think I can be an aunt, I am [Y]’s mum…she looks at me that way”. I have some concern that this demonstrates a fairly significant lack of perception on the part of the aunt about exactly where she stands in the framework of this matter.
She is an important figure and there is no dispute that she is a person interested in the welfare of the children however she should be clear about where the boundaries are in this matter. I am not certain that she has been able to demonstrate that this is the case.
The father for his part has conducted himself well during the course of these proceedings.
The circumstances in which his life went from having a family to having to institute proceedings were no doubt highly stressful and yet as the aunt concedes there was not one incidence of anger that she could complain of since the parties separated.
If there is any concern it is how he views the aunt and her role in this matter to date.
At trial he maintained the view that she was motivated by the need to obtain a visa to enable her to permanently reside in Australia.
As the aunt said in the course of the evidence “I don’t think that he acknowledges I love the children and they love me as much as they love him”.
He was however able to concede that the aunt was a good parent and agreed that the children had a strong attachment to their aunt.
He agreed that the children should travel together in all things noting that [X] looks after [Y] and vice versa.
His proposals however cause some concern regarding the rapid decrease in the time that he proposes that the children spend with the aunt in that they could be seen to be ignoring the reality of the situation and her role to date in their lives.
SECTION 60CC(3)(g) - the maturity, sex, lifestyle and background of the children
[X] is aged seven and [Y] two this year. Their aunt, since the death of their mother and no doubt in the months preceding her death, has taken on the role of their primary caregiver.
Their age is a matter that was critical in forming the view of the report writer. The pace at which they could cope with change, particularly in the case of [Y], was a critical consideration.
Concerns were initially expressed about the ability of the children to cope with the transition to spending overnight time with the father.
Neither party however raised this as a serious matter of concern when giving evidence in the course of the trial. It was apparent that it was proceeding well. The parties were in fact able to agree a further increase by way of an interim arrangement pending the judgment being delivered in this matter.
Regard is had to the above in making the orders and in particular when increasing the time they spend with their father.
Regard is also had to the above when considering the role that the aunt should play. She has become an important part of their young lives and I do not think she can be restricted to the time that is proposed by the father.
SECTION 60CC(3)(h) – if the child is an Aboriginal child …
This section is not relevant.
SECTION 60CC(3)(i) – the attitude to the children and to the responsibilities of parenthood demonstrated by the father and the aunt
For reasons that have already been discussed, there are concerns arising from the parties’ past conduct about their attitude to the children and the responsibilities of parenthood.
Both parties at the trial indicated their willingness to work towards a new paradigm where the conversation could shift from being about or a reflection of their feelings about the other, to being a conversation about the children.
To that end they were prepared to undergo counselling and take appropriate steps to ensure that the other was involved in the children’s lives through their schooling, extra curricular activities and health issues amongst other things.
Whether this new found optimism will stick remains to be seen and whether it will continue if the parties are having equal time or substantial and significant time is the issue.
SECTION 60CC(3)(j) – any family violence involving the child or a member of the child’s family
I have addressed the events that occurred whilst the parents and the aunt were residing under the one roof.
I have commented on how the incidents arose at a time when the parties were under extreme pressure.
Whilst taking those matters into account, I have also had regard to the behaviour that the parties exhibited over the last two years and consider the orders appropriate in all the circumstances.
SECTION 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family
This section is not relevant as the order obtained by the mother has now lapsed.
SECTION 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
The orders I would make allow for the aunt to continue to have a significant involvement in the children’s lives whilst eventually allocating the primary care of the children to the father.
The aunt has taken on a significant task in raising the children to date.
I am not convinced that she should be asked to continue that for the rest of her life.
Whilst I do not doubt her willingness to care for the children, I do have some concerns about her late conversion to working with the father (which reflects on her ability to put the children’s interests first and not let her feelings get in the way) which I hope for the children’s sake she will disprove.
I also have concerns about her motivation being the promise to the children’s mother to carry on in the role of primary carer. Whilst her promise is no doubt important, it is the children’s interest that is the paramount consideration and that may not accord with what the aunt understands as the wishes of their late mother.
Whilst there is agreement on a transition to shared care, I accept the father’s submission that it needs to go further than that. I do not however, consider the father’s proposal to be the way forward.
Whilst the parties have assured the Court that they will work on improving their communication for the sake of the children, the history of this matter would suggest the children would benefit by having a base with one party whilst spending significant time with the other.
This in turn would, I consider, assist in reducing the potential for further litigation.
I therefore consider it appropriate that the progression of time lead to a position where the father is the primary carer and the aunt has substantial and significant time.
Section 60CC(4) - Extent to which the either party has fulfilled or failed to fulfil responsibilities as a parent
People charged with the care of children have a responsibility to communicate with each other about the business of parenting. This was not happening. Mr R was of the opinion that the parties could not afford the luxury of where they are now. Their ability to communicate for the sake of the children had to improve dramatically.
An example of this was what they would tell the children about their dead mother. He was very clear that there should be one story common to both parties for the children to know.
[Y]’s memory of her mother is limited by her age at the time of the mother’s death. [X]’s memory will be different.
Each child as they grow older will want to know more about her. Mr R made it clear that it was extremely important for the children that there be one story about their mother. For that to occur, the parties will have to work together. The children for a period lost their father and their mother. The father is anxious to become a major part of their lives.
The parties to their credit heard and accepted this evidence and agree to comply with any orders made for counselling or co-parenting mediation.
Section 61DA presumption of equal shared parental responsibility when making parenting orders
Having made an order for equal shared parental responsibility, I must consider the provisions of s.65DAA.
Section 65DAA
This section requires me to consider having made an order for equal shared parental responsibility whether an order that the parents have equal time with the children would be appropriate. The parties support a transition to equal time. It is the pace of the transition and what happens after that is not agreed. In considering that, I must, amongst other things, consider the following factors:
(a) How far apart the parties live from each other
The parties both live in Adelaide within a suitable distance of each other. Neither raises this as an issue.
(b) The parties current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parties
At present the parties are starting from scratch. They have been against each other since the aunt intervened to help the mother.
I have however noted in these reasons their evidence that they each now acknowledge the other’s importance in the children’s lives.
I have reservations in respect of this, taking into account the history of the matter and the late change of heart of the aunt, which I have discussed previously in these reasons. Subject to those reservations I consider the parties have the capacity to implement an arrangement for the sharing of the children’s time.
I acknowledge the aunt’s importance but I have reservations about the ability of the parties to continue this relationship until the children reach the age of eighteen.
All other things being equal (and I have commented on this in these reasons) I consider there has to come a point where the role of the father is recognised. The recognition would, I consider, go some way to assisting the parties in their communication and enhance their capacity to implement the sharing of the children’s time between them.
I therefore consider that the arrangements should move a step further so that the children’s time with the father is more than that with the aunt.
(c) The parties current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
The evidence before me at present is that the parties have no capacity to communicate. They have however expressed a willingness to work on this. They should be held to this and orders made accordingly.
Mr. R agreed that it was important to have regard to the party who was best able to put the past behind them and move on.
Whilst the aunt at trial indicated her willingness to do so, it was the father who best demonstrated this ability through the course of these proceedings.
I would therefore favour his ability to communicate and resolve difficulties that may arise.
(d) The impact that an arrangement of that kind would have on the children
This has particular relevance when considering the impact of the transition upon [Y]. The pace of that change cannot be too quick and should, in the absence of agreement, be approached cautiously.
The parties have indicated their willingness to make it work and I have accepted their assurances. This would minimise any negative consequences for [Y] and enable her to enjoy the positive consequences of increased time with her father.
I do not consider the transition to increased time with his father would have a negative impact on [X] however would not at this stage support, nor is it suggested that there be a different pace of transition for him.
Substantial and significant time
Whilst I consider the parties can move to an arrangement for equal shared care, I consider that this should not be the final arrangement as I accept the father’s submission that this should not be the last step.
I have expressed my concerns about the late change of heart by the aunt and I consider it appropriate that there should be one central figure to provide a base for the children. That person should be the father. I would then have regard to substantial and significant time for the aunt.
Pursuant to s.65DAA(2) of the Act where:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
Substantial and significant time is where :
a) the time the children spend with the parent includes both:
i)the days that fall on weekends and holidays; and
ii)the days that do not fall on weekends and holidays; and
b)the time the children spend with the parent allows the parent to be involved in:
i)the children’s daily routine; and
ii)the occasions and events that are of particular significance to the child; and
c)the time the children spend with the parent allow the children to be involved in occasions and events that are of special significance to the parent.
For the reasons set out above I have formed the view that the aunt is now an important fixture in the children’s lives, particularly [Y].
While I do not think equal shared care is the correct solution, I consider that her role in their lives should not be reduced to that proposed by the father. She should have a substantial and significant role in the children’s lives.
The evidence does not support a significant drop in the aunt’s time with the children particularly when one takes account of [Y]’s age and the role the aunt has played to date.
The children have been subjected to significant change to date with the loss of their father, and then their mother. Pursuant to these orders, the children will be undergoing further significant transitions in the increase of their time with their father.
At this stage I consider it appropriate that they not be subjected to another loss, being the sudden reduction of the aunt’s time with them. I therefore consider it appropriate that the aunt continue to have substantial and significant care which would translate into the children living with the aunt for six nights out of fourteen with the parties sharing school holidays and special occasions.
I therefore make the orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Cole FM
Date: 1 September 2011
0
2
1