Dawes and Dawes
[2014] FCCA 3154
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWES & DAWES | [2014] FCCA 3154 |
| Catchwords: FAMILY LAW – Interim parenting application on short notice – competing parenting applications – with whom children should live – allegations of family violence – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 67ZBB |
| Cowling & Cowling [1998] FamCA 19 Deacon & Castle [2013] FCCA 691 M & M (1987) FLC 91 – 830 Briginshaw v Briginshaw (1938) 60 CLR 336 B & B (1986) FLC 91 – 758 Other Articles Cited: | ||
| Applicant: | MS DAWES | |
| Respondent: | MR DAWES |
| File Number: | PAC 6029 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 18 December 2014 |
| Date of Last Submission: | 18 December 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Jurd of Peter Jurd Lawyer |
| Solicitors for the Respondent: | Ms Ralston of Coleman & Greig Lawyers |
ORDERS
Pending further order and pursuant to section 61C each parent shall have parental responsibility for their children X born (omitted) 2011 and Y born (omitted) 2013.
Pending further order, the children shall live with their mother.
Pending further order, the children shall spend time with their father:
(a)Each Wednesday from 10am until 5pm (extending to 6pm during day light savings);
(b)Each weekend from 12noon Saturday until 5pm Sunday (extending to 6pm during day light savings);
(c)From 5pm Christmas Day until 6pm the following Sunday in 2014; and
(d)For such other times as agreed between the parents from time to time.
For the purpose of the children passing into the father’s care and returning to the mother’s the father shall collect the children from and return the children to the mother at the mother at the mother’s home.
Each parent shall forthwith and if they have not already done so, do all things, sign all documents and give all consents and authorities necessary to ensure that each parent is recorded with any treating general practitioner for the children, any medical specialist upon which the children or either of them attend and any preschool attended by the children or either of them as both a parent and emergency contact person and such as to allow each parent to obtain information and reports and be fully involved and consulted regarding the child’s medical treatment of education.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to visit the children if hospitalised.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 21 days contact the intake officer of Family Relationships Centre (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).
Pursuant to section 13C of the Family Law Act1975, the Independent Children’s Lawyer and the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete Family Dispute Resolution prior to the next Court event.
The matter is adjourned for further mention and directions to 29 April 2015 at 9.30am.
Note the father’s undertaking to the court that he will deliver the children to the mother’s home by 6pm this evening.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Dawes & Dawes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 6029 of 2014
| MS DAWES |
Applicant
And
| MR DAWES |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing Applications for parenting Orders with respect to two young children X born (omitted) 2011 and Y born (omitted) 2013. The children are accordingly, aged three and 18 months of age respectively.
The parties to the proceedings are the children’s parents being their mother, Ms Dawes who is the Applicant and their father, Mr Dawes, who is the Respondent.
Material considered
The matter has come on at short notice. The Applicant mother’s Application was filed on 15 December 2014. It is listed today, 18 December 2014.
The father was served with the Application it would seem, on the morning of 16 December 2014. It is, accordingly, a testament to the efficiency and competence of the lawyers for each of the parties that they have on short notice, prepared their respective cases. Those cases comprise, in the case of the mother, an Application Initiating proceedings filed 15 December 2014 and an Affidavit filed the same day and in the case of the father, a Response, Affidavit and Notice of Risk all filed this morning.
One could take no exception to the father’s material being filed and served on the morning that the matter is listed for interim hearing when he has had, in effect, two business days to obtain advice, representation and present his case. It is a “Christmas miracle” that he has done so.
The parties have diametrically opposed positions, both evidentially and as regards the proposals that they put to the Court.
The mother seeks Orders on an interim basis that the children live with her, that the father be restrained from removing them from her care and, if necessary, that a Recovery Order issue to secure the children’s placement into her care. It can be inferred and, indeed, it is clearly submitted by the attorneys on behalf of the mother that she proposes that the father would spend time with the children clarified as comprising two days per week from 10:00am until 5:00pm.
The father, for his part, proposes that the children would remain in his care. He proposes that the mother would spend time with the children for periods of two to three hours at a time and that time be supervised by the paternal grandmother or some other person agreed between the parties from time to time.
There are issues raised by the father which he urges are suggestive of significant and unacceptable risk to the children. I will deal with those issues shortly. Prior to doing so, I propose to briefly canvas the evidence of the parties. I make clear that the canvas of evidence will be brief. The proceedings are dealt with in a busy duty list. In fact, the matter is dealt with during what should have been the lunch adjournment of that list but to ensure that the Court’s business is completed.
The parties agree that they met each other in 2010 and commenced a relationship with each other in 2011. The parties were married on (omitted) 2012 in accordance with the rites of the (religion omitted) Church.
The parties would appear, on the mother’s evidence at least, to have separated for a brief period in February/March of 2014. During that period there would not appear to be great controversy that the children lived principally with their mother, although clearly, both parents remained involved in their care. Indeed, these are two parents who have each been heavily and significantly involved in the care of their young children.
The parents separated, sadly, only a little over a week ago on 7 December 2014. The circumstances of that separation are addressed in a complaint for an Apprehended Domestic Violence Order to which I will also turn shortly.
On the day of separation namely, Sunday 7 December 2014 – the father left the home and went to stay with his parents some short distance away. The father suggests that the children were left with the mother at that time as he did not believe that the parties were, in fact, separating and felt that there had simply been an argument and the parties would reconcile the following day. They did not and the father then took the children into his care and they have remained with him since. The mother suggests that the father asked to spend some time with the children and thus, she suggests some degree of chicanery in relation to their removal.
The father’s evidence is that he had attended at the home to collect some items and had said to the mother, he describes “to calm her down,” “I am taking them to the park until you calm down”. The father then left with the children but rather than going to the park he went directly to (omitted) Police Station as he was concerned about the argument that had taken place, although he describes that it was not an uncommon event, and he indicates that he was concerned as to, “Ms Dawes’ reaction to the children coming with me given her mental health, details of which are deposed to below”.
The mother’s “mental health” is raised as an issue of significance and intimately connected with the suggestion of risk to the children.
As a consequence of the father’s attendance at the Police Station, an Application for an Apprehended Domestic Violence Order was made by Constable (omitted) on behalf of the father. That complaint was listed before the Burwood Local Court on 12 December 2014. It would appear that the complaint is defended.
The complaint describes an argument between the parties on the evening of Saturday 6 December 2014. The parties had attended a barbecue at the home of a friend. That has some significance as, clearly, the mother had, at least on that occasion, left the former matrimonial home. It is a suggestion that she is generally reluctant to do so and rarely, if ever does so, other than in the company of the father.
The father suggests that throughout the night the children had been playing with their father whilst the mother was outside and that later in the evening the mother was asked to come and help with the care of the children and ignored the father and continued to “party with her friends”. Again, that is somewhat inconsistent with the mother’s alleged behaviours suggestive of, if not representing, agoraphobic traits.
In any event, upon returning home that evening, it is suggested that the mother began to yell and scream at the father, including yelling, “You’re an asshole. You always ruin it for me”. The father describes that he “tuned out” and did so as such arguments and insults were a common occurrence. The father says that he then went inside the home, collected the children and left.
The following day the parties are suggested to have not talked to each other until about 6:00pm that evening and when the children were being made ready for bed, the father says that the mother approached him and said, “I don’t want you to stay. I want you out”. The father says he did not do anything but simply left and went to stay at the home of his parents and the following day, as described, returned to the home.
In the Police Facts attached to the complaint it is suggested that upon approaching the home the father could hear the mother yelling at the children, “Why can’t you be good? I can’t handle it. I’m going to run away” and upon entering the home he says he was confronted by the mother who was screaming at him, “You fucking prick. Why don’t you fuck off? You’re making out that I’m a bad mother”. Indeed, in retrospect and in light of the proposals presented by these parties and each of them today, the mother might have some basis or justification for having formed the latter view.
Since 8 December 2014, the children have not seen their mother, although it is suggested they have spoken with her on a number of occasions by telephone. They are, however, children of three and one and their ability to converse on the telephone is likely to be limited even if they are incredibly advanced children.
The father’s concerns with respect to risk largely revolve around the suggestion that the mother has, at some point in time in the past, been diagnosed with “bipolar or schizophrenia” and that her behaviours during the relationship have been consistent with such a diagnosis. The father suggests that the mother has had various periods of being up and various periods of being down and that during each of these periods that there are behaviours that are suggested to be equally disturbing.
Whilst down, the mother is suggested to be withdrawn and detached from the household and to play no active part at all in the care of the children. When the mother is up it is suggested that she is highly active - what might be described in the old terminology as “manic” - and that she is particularly aggressive during those periods.
The mother, for her part, denies such allegations. She concedes that at the time that she met the father that she suffered from anxiety and depression and was, at that time, prescribed Xanax which she was taking, albeit for short periods of time. Clearly, early in the relationship, consistent with the evidence of both parties, the mother discontinued any treatment or medication regime.
The mother has, for some little time, been in receipt of a disability support pension. That was first approved or granted in February 2007. The mother also, at that time, obtained accommodation through the Department of Housing, assistance which she continues to receive.
The mother concedes that prior to receipt of a disability support pension that she had had a number of periods of instability with her mental health and had been admitted to units of various hospitals as a consequence of, at various times predating and one would imagine during such admissions, having experienced suicidal ideation. She is clear in indicating that she has never acted on those thoughts.
The mother gives some history in relation to her life and which would provide some cogent basis for why she might, in fact, suffer from anxiety, depression or any other condition. The mother also makes clear that she has, since the early stages of the relationship with the father, taken no medication nor sought nor felt the need to obtain treatment. The father suggests that he has raised with the mother on a number of occasions his concern that treatment would benefit her.
The arrangements for the children’s care since birth are reflected in the reality that each parent has, since the birth of the children, been at home on a full-time basis. Neither has had paid employment since the first child was born, the mother being in receipt of a disability support pension, the father in receipt of a carer’s allowance relating to the mother. It is important to observe that a carer’s allowance paid to a person who lives with a second person in receipt of a disability support pension does not, of necessity, infer a complete absence of capacity in that second person to provide for their care.
The basis upon which a carer’s allowance is paid is broad and varied. There is no specific evidence as to the grounds upon which the disability support pension is suggested to be paid, or the carer’s pension. The payment of either benefit does not of itself suggest, imply or infer that the mother cannot care for herself or children. They are matters which can be addressed at a later time when there is more evidence available.
I do not accept for present purposes that the mother’s receipt of a disability support pension and the father’s receipt of a carer’s pension referable thereto demonstrate or even infer an absence of capacity on the part of the mother to self-care or care for the children. Indeed, the evidence of both of the parties makes clear that they have each been highly involved in the care of the children.
There is some dispute between the parties as to who has attended to what level of care and each asserts to establish themselves as the “primary carer”. In the words of Warshak in an aptly titled paper which I make clear is not considered as to its contents but purely its title: “Primary Carer, Primarily Meaningless”.
The Court does not, as it might be suggested it did prior to the 2006 amendments, ascertain a “primary carer” and restore children to that person’s care. That may well have been the rationale of authorities such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239, but it has been clear since the 2006 amendments and, in particular, Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101, that the Court’s exercise is prospective.
Past care arrangements are relevant. They assist the Court in providing a foundation upon which some prediction – informed speculation, if one would have it - of that which will work in the future might be based. However, past care arrangements are not determinative of future care arrangements. They may be influential, they may be suggestive, but there is little to be gained from mathematising the level of care previously provided by each parent to these children.
What is clear and uncontroverted is that the mother - consistent with World Health Organisation guidelines and no doubt, her own desire - breastfed these children and each of them from birth for a period of time up to, in relation to the younger child, quite recently and thus, at or shortly or around his first birthday. The elder child would appear to have had a similar, although slightly shorter, period of being breastfed.
Each party asserts that they have been actively involved in the children’s care and I accept that they have. That acceptance is on the basis that each has fulfilled roles and duties for these children independent of the other as well as together. They have jointly parented their children whilst they have been resident under the one roof and there are times when one or other of them has attended to diverse matters for them.
The father suggests that the mother has rarely, if ever, had the children in her sole care, that she has either had his assistance or during a period of hospitalisation of the father that the paternal grandmother visited to assist during the day.
The mother asserts that she has frequently had the children in her care without the father’s presence, asserting that the father plays poker each Thursday night and occasionally on Fridays and Saturdays, travels with his parents to a farm that they own near (omitted) and leaving the children at home with the mother and she then caring for them without any other person being present.
The father may well dispute some of those issues. His material is prepared with great haste and great efficiency by his attorneys. However, it is clear that the mother has had periods of time when the children have been in her sole care, including overnight. What is also clear is there is no suggestion that at any time that the children or either of them has ever come to harm whilst in the mother’s care, whether with the father present or otherwise.
The father suggests that this is because he has been present or not far away to intervene in the event that the mother, as he describes, is “having a low mood” and is unable to care for the children. However, the father was not present during his hospitalisations or for the previous separation of the parents of about six weeks. The mother was perfectly able to care for the children at that time and did so without any significant assistance suggested by either parent. Importantly, it is not suggested that the children experienced disadvantage as a consequence of those past arrangements.
Certainly, the children will now experience the significant disadvantage of living other than with both of their parents happy and together in the same home. However, unless these parties form a different intent to the one they each presently evince, clearly, that is a reality that these children will need to adjust with. These parents have determined to go their separate ways. They will have significant time whilst these proceedings remain on foot to determine whether they wish to change that circumstance or not.
Unacceptable risk
For the sake of brevity and consistency between Judgments, I incorporate herein the discussion of the unacceptable risk test commencing at paragraph 454 of Deacon & Castle [2013] FCCA 691 being:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgment at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles”
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture
The Court must adopt a cautious approach towards any allegation that suggests that children are at risk of harm. However, the caution must be directed to both sets of allegations.
The mother raises allegations of her own, including with respect to family violence, something profoundly significant for children of this age. Children of one and three are at an important state of emotional attachment and development as well as neuro-scientific development. Exposure to significant conflict would impact upon their brain development, let alone the development of their personality and learning.
These are children who have special needs, at least one of them, in relation to diet and allergies. What is clear from the material filed by both parties is that they have each been actively involved in addressing those concerns and, thankfully, have been very consistent in the approaches they have taken. The mother annexes to her material a report provided to her by the child’s treating paediatrician dated 28 March 2014. That report would suggest that the child was taken by the mother to the hospital. It does not refer to the father being present, although it does not exclude the possibility that it was so.
What it makes clear, however, is the mother can attend to the children’s medical needs, she can leave the home with the children to meet their needs and she is conscious of and very much involved with the children’s day to day care and development. She has provided specific and detailed information to the paediatrician that one presumes was not written down for her and provided by somebody with greater knowledge. Presumably, it is knowledge she has gained herself from interacting with Y.
The two essential pillars upon which the allegation of risk raised by the father are founded are the mother’s suggested “erratic behaviours” and the mother’s suggested potential to act out physically and aggressively. In addition, of course, the father raises the concern with respect to the mother’s suggested “mental health issues”. I will deal with that issue separately.
In relation to the suggested erratic behaviours, there is, as observed by the attorneys for the mother, little, if any, specificity or particularisation of that upon which the opinion of erratic behaviour is formed. Again, the father’s material has been prepared hurriedly. I would be loath to be critical or overly critical of him for such a lack of particularisation. However, there is a problem in using language such as “erratic behaviour”. It is unclear what it means or what it could possibly mean as regards impact upon the children. It is an opinion, a conclusion and without clear evidence of that upon which it is based meaningless.
The father points to the mother’s suggested “erratic behaviours” as set out in the Police complaint. One must view any parenting Application within the context of the parents’ lived experience. What is suggested in the Police complaint is that “verbal abuse” by the mother to the father is a regular event.
To the extent that “verbal abuse” is suggested to be described specifically on each of 6, 7 and 8 December 2014, it is to be remembered that this is at a time when the parents are in the process of physically separating from each other. That is not to suggest that one condones a parent calling the other an “asshole” or telling them to “fuck off”, especially not in the presence of their children. However, one could not expect the best behaviour of parents when they are in the process of separating from each other. It is a terse, emotional time for each, irrespective of whoever wishes to instigate separation or resist it not an episode of “Downton Abbey” with each acting with implacable middle class decorum.
To the extent that the Police complaint is thus suggested to demonstrate “erratic behaviour”, I make clear that I do not accept that it is so. Further, on the basis of that which is related in the Police complaint, it is difficult to comprehend how the concluding paragraph:
The person who needed protection fears for the safety of his children and himself –
is founded. That described in the complaint would not appear to be a matter that warrants Police involvement but that is a matter for the Police.
The evidence in relation to the mother’s behaviour does not cause me significant concern, certainly not to the level as would be required by Johnson & Page and the authorities referred to above, to establish an unacceptable risk.
I am conscious that these are interim proceedings and the documents are prepared on short notice - incredibly short notice as it would turn out - and that the Court is hearing the matter on the papers without the benefit of any cross-examination, opportunity for corroborative evidence or the like. The Court is enjoined to be cautious as regards findings of fact in those circumstances (see for example, paragraph 68 of Goode & Goode).
Even being cautious the evidence at its highest does not demonstrate anything which would, taken at its highest and accepting it as more probably correct, establish an unacceptable risk as a consequence of suggested “erratic behaviour”. At its highest it suggests two adults, whose relationship is deteriorating, falling apart and ending.
There is no evidence to suggest that either of the children has ever come to grief emotionally or physically as a consequence of the mother’s suggested ups and downs or erratic behaviour.
There is no suggestion that the mother has ever acted inappropriately towards the children. She is suggested to have undertaken a number of actions such as becoming frustrated and losing her temper but they are not within the category of symptomology of mental health conditions. Mental illness and mental disorder are terms defined in the Mental Health Act 2007 (NSW)[1].
[1] Section 4 "mental illness" means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
The behaviours complained of with respect to the mother are the types of behaviours that parents normally and naturally engage in especially when their relationship is ending.
Parenting is a difficult job. Y is a fussy eater and thus when it is suggested that the mother, in the early stages of his life and before a full and proper investigation of his eating difficulties had occurred, would become frustrated and at times perhaps even yell at him or bang his food bowl on the table, it is far from suggestive of mental illness or risk. It is suggestive of a parent who is doing the best they can with two children, both at that point under the age of two, and struggling to have the child eat, something which would cause any parent concern and frustration.
One must view the behaviour of a parent, particularly when the parents are still together, through a lens of reality. Parents are not perfect. This Court does not intrude into the lives of parents in intact families. It is probable that within intact families throughout the country that such events with small children occur on a daily basis. Intact families are simply not scrutinised by the Court and they are not the subject of criticism and interpretation of behaviour.
The behaviour of the mother that is complained of is simply an expression of parenting. Whilst one might criticise it as being “inappropriate”, that criticism could only apply if one could ever find and hold up for public scrutiny the “perfect parent” who never becomes frustrated or angry, who is never tired and up at 3 o’clock in the morning breastfeeding a child and accordingly, might suggest to the child in whatever tone of voice that it might be considerate of them to go to sleep. Indeed, many have made vast amounts of money from writing comedic books on that very theme and they sell so successfully because those who have experienced that tiredness and frustration understand how much temptation there is to go even further. But they do not. Importantly the mother has not. She has been tired and frustrated and expressed it. All that reflects is that she is human and imperfect.
I am not satisfied on the basis of the suggested “ups and downs”, “low and high moods” or “erratic behaviour” that there is an unacceptable risk posed to these children by the mother or any risk at all. It may be that further evidence is to be produced. However, there is no need, as is sought by the father, for the mother to be psychiatrically assessed prior to any other step being taken such as an increase of the mother’s time beyond supervision.
The father seeks an Order that the mother obtain a referral from her general practitioner and thereafter attend all scheduled appointments, accept any treatment or therapy as may be suggested by a psychologist, take any medication prescribed and attend any other appointments or referrals as may be nominated by the psychologist or general practitioner. I do not accept that is an Order which the Court should make. The Court must respond to evidence and the Court must respond to specific guidelines and recommendations.
What if, for instance, the mother attended upon a doctor who was negligent? She would then be bound to follow the treatment recommendations they made. If the mother was referred to a psychologist or psychiatrist who, for whatever reason, was anything but up-to-date with current practice and determined that ECT treatment was appropriate for her, she would be compelled by an Order of the Court to submit herself to a most invasive and potentially disastrously damaging procedure. It is simply not appropriate and I do not propose to make such an Order. Nor does the evidence establish it is necessary.
The mother’s mental health
At its highest, the father’s evidence suggests two things. Firstly, the father alleges that the mother said to him at or about the time that the parties first met in 2010 or 2011 “that she had been diagnosed with schizophrenia and bipolar and was on a disability pension”. The latter proposition is not in dispute. The former is. The father then goes on without any suggestion of any other source of knowledge to offer as an authoritative diagnosis of the mother that she does, in fact, suffer from schizophrenia and bipolar. There is no evidence that she has ever received such a diagnosis even accepting the father’s evidence at paragraph 13 with its deficiencies as to form.
Secondly, the father then, based upon that belief, and it is no higher than a belief, interprets any behaviour of the mother by reference to his understanding of the symptomology of such diagnoses. However, there are alternate interpretations of the mother’s behaviours, including as discussed above. If the mother, from time to time, has yelled at him and called him names, then that may well simply be because she is “high-strung” or simply angry and aggrieved by the father’s perceived wrongdoing. It may be that the parties irritate each other, as married couples so often do. It may be that there are better ways to deal with such irritations but it is how the mother has dealt with them. It does not demonstrate or lend support to a concern that the mother has been or would be, if she sought treatment, diagnosed with bipolar or schizophrenia. People who are not mentally ill yell at each other.
The mother concedes, frankly and in some detail, that she has a history of treatment for mental illness or mental disorder. She acknowledges - commencing at paragraph 15 of her Affidavit - a history until 2007 of short admissions and prescription of medication, such concerns arising from a period of childhood abuse. The mother makes clear that it is on the basis of those experiences in her life and the injury she suffered that she is now in receipt of the disability support pension.
The mother is clear and the father corroborates it, albeit from different perspectives, that she has not during the relationship taken medication or attended upon any medical practitioner for treatment or assistance. That may be, as the father alleges, because the mother refuses to accept service or acknowledge that she has a problem. It may also be, as the mother alleges - and it would seem the more plausible explanation on the evidence presently available - that she does not feel the need for treatment or medication. That may, in fact, be connected with the father’s support. It may not.
There is nothing beyond the ups and downs and erratic behaviour complained of to suggest that the mother has, in any way, been unable to function, care for herself or care for the children. The mother describes that at an early time in the relationship, albeit prior to the birth of the children, that the father worked away from home for three months returning periodically. It is not suggested that the mother fell into a heap and failed to function at that time.
There are then the allegations referred to above as to the father’s absence for entertainment pursuits or to spend time with his parents at their farm. All of those times are periods when the mother is not suggested to have done other than cope and function perfectly well in the father’s absence, (the person who is described as her carer). When the children are in her care for those periods she has met their needs. It is not suggested in the father’s evidence that he has returned from a weekend away at his parents’ farm to find the children dishevelled, dehydrated and in need of assistance. As it is not described one can assume that it did not occur.
As I have made clear to the attorneys for each of the parties it is my earnest desire that the day will come when the suggestion is not made to the Court that children are at risk because there are “mental health concerns”. The term has no place in law and is not defined or understood at law. What is understood at law is a diagnosis of mental illness or mental disorder as defined in the Mental Health Act 2007 (NSW). The mere diagnosis is irrelevant.
If a parent is diagnosed as asthmatic or diabetic, that does not cause the Court to respond cautiously or to suddenly begin an inquiry as to what risks that might pose to the children. A diabetic who refuses treatment, refuses to check their blood sugar levels or take insulin as directed by their doctor could, in all probability, represent a greater risk to a child than would a parent with anxiety or depression who is coping and does not feel the need for, nor is prescribed, treatment or medication. The diabetic could, within a very short period of time if they do not receive insulin, likely be unconscious and completely unable to care for the children.
Similarly, an asthmatic with a significant and chronic condition who refused to acknowledge that they have the condition, dismissed it as a childhood illness that could not possibly affect them and refused to take any medication or treatment could be a real risk to children if they were left in their care. If they were to have an attack, they would be entirely unable to care for themselves and it would be incredibly distressing for children to watch their parent slowly, in effect, suffocate before their eyes.
Many parents have depression and anxiety and that is the condition conceded by the mother. Indeed, from commonly available statistics and I do not rely upon them as extraneous evidence or as a fact in the case – up to one in four women at some point in their life will be at a point where they could be clinically diagnosable with depression, particularly following the birth of children. That is not to suggest that those diagnosed are all incapable. It is not to suggest that they all require care or assistance. It is not to suggest that they are incapable of caring for their children whilst depressed or anxious. It is not to suggest that they require treatment - whether medication, hospitalisation or anything else. It is simply to acknowledge that they have a medical condition.
In this case, there is no suggestion that the mother has ever failed to meet the children’s needs. It is certainly suggested that the father has, by and large, been present. But there have been periods of time, including some significant periods - the separation earlier in 2014 for example - when the father was not present, the children were in the mother’s care and the children seemed to have done perfectly well. That is not to suggest they would not have done better if both parents were present but they came to no harm and they seemed to have been looked after perfectly well in the mother’s care. I can infer and assume that as there is no complaint to the contrary.
Mental health diagnoses are a medical problem. They are nothing more. Gone are the days of bedlam when the asylum built at Southwark attracted the generic and common misunderstandings which now permeate popular fiction and the community’s expectations of what a person with a mental illness or disorder looks like.
The mother has functioned perfectly well throughout the relationship. She has had no admissions to hospital, no suggestion of self-harm, no suggestion of expressing suicidality, no suggestion of suggesting infanticide or thoughts of same, no suggestion that she has ever been unable to care for herself. Why in those circumstances supervision is suggested is unclear. It could not be connected with the facts as established before the Court on the evidence of the parties jointly.
I thus reject that there is any need for supervision of the mother whilst the children are in her care. I reject that suggestion because I am not satisfied that an unacceptable risk could be made out.
I do accept that there are cases where unacceptable risk would be made out by reference to a parent’s mental illness. It is not, however, the diagnosis of a mental illness or disorder that would speak to that issue. It is active symptomology, a lack of insight, a lack of treatment when required and demonstrated to be so and injurious behaviours, the very criteria that apply under the Mental Health Act 2007 (NSW), that a person is a risk to themselves, a risk to others or a risk to their own reputation.
There is no evidence that suggests any such factors in this case. I do not conflate a determination of the children’s best interests with an inquiry under the Mental Health Act 2007 (NSW). It is a very different focus. However, absent evidence that suggests that a person suffers from a mental illness or disorder and absent evidence, even if such diagnosis is present, that they are insightless, refusing treatment or not responding to treatment, then the diagnosis itself is irrelevant. Accordingly, and as would be clear, I am not satisfied that there is an unacceptable risk established and I can thus now proceed to determine the parenting dispute between the parents.
I must pause, however, to note that the mother also does raise issues of risk. She suggests a history of family violence. However, the relief that she proposes would suggest that she is satisfied that the children would not come to harm in the father’s care. That is not to suggest that either the mother or the Court condone family violence if it is ultimately found to be proven, simply that the mother suggests that an appropriate response to those concerns, those suggested risks, is unsupervised time.
I also make clear that whilst both parties suggest a significant issue of risk to the children, neither has filed a Notice of Risk, a mandated obligation under the legislation. That is, regrettably, a common circumstance. It is, on that basis that the Federal Circuit Court of Australia will, from 12 January 2015, require that each and every litigant filing an Application or Response in parenting proceedings file a Notice of Risk and that their document not be accepted without it. It would appear to be the only way by which this Court can obtain compliance with Parliament’s imposed obligation, an important obligation as it alerts the Court to the requirement to be cautious. It triggers the Court’s obligations under section 67ZBB of the FamilyLaw Act 1975 and it alerts the appropriate welfare authority to allegations of concern.
Legislative pathway
I must commence with section 60CA of the Act which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then turn to section 60B of the Act, the objects and principles of the legislation. I incorporate the section herein:
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).
The objects and principles do not form part of the substantive provisions to be applied to the facts and circumstances of the case. They do, however, inform the application and interpretation of the substantive provisions and generally guide the outcome which the Court should endeavour to achieve. Thus, the Court is required to ensure the children’s best interests are met by:
a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives; and
b)Protecting children from physical or psychological harm.
I am not satisfied that the evidence establishes an unacceptable risk to which I must be responsive. Accordingly, I am left to consider the children having and receiving benefit from both of their parents being involved and meaningfully involved in their lives and to the maximum extent consistent with their best interests.
Clearly, these are parents who have each had active involvement in the care of these children. Accordingly, it would be beneficial to them to continue that involvement. As a corollary, it would be detrimental to them for that involvement to have ceased, even for short periods, for children as young as these and yet that is what has happened between 8 and 18 December 2014.
I must then turn to the principles underlying the objects. Those principles create rights for these children.
There is a difficulty in the address of parenting proceedings by reference to children’s rights. Firstly, rights carry with them duties and responsibilities. Children are incapable of fulfilling the duties that would attach to their rights. On that level, if one were to consider jurisprudence such as the recent decision of the New York Court of Appeal in People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 2014 WL 6802767 (N.Y. App. Div. Dec. 4, 2014), the child would not be considered a “person” as they are unable to comprehend or fulfil their duties. Thus, they would have no rights, no more than Tommy, the subject of the case – a chimpanzee. These children are, however, people and they do have rights created by Parliament through incorporation of the totality of the International Convention on the Rights of the Child into the Family Law Act 1975.
The second difficulty which is apprehended is that the rights which these children have, clearly absent corresponding duties, are to be fulfilled by the very parents who are in dispute as to what those rights are and how they might best be met. Accordingly, there is the real potential for parents to conflate their own rights, duties and interests with those of the children or for them to be blinded to a discharge of their duty to ensure the child’s right as a consequence of their litigation.
In any event, these children have a right, created by Parliament (and subject to the caveat of the right not being absolute and subject to other considerations such as safety) to know and be cared for by both of their parents and to spend time and communicate on a regular basis with both their parents and other people significant to their lives.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and if it does apply, determine whether it is rebutted.
The Court must apply the presumption unless it is found by subsection (2) to not apply or per subsection (3) to be inappropriate to be applied or found by subsection (4) to be rebutted.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the child. There are no allegations of abuse of the child. There are, however, allegations of family violence raised by each parent.
I am not in a position to make concluded findings of fact with respect to those allegations. Accordingly, I propose to rely upon subsection (3). It would be inappropriate for the presumption to apply in circumstances where the parents are clearly so at odds with each other as to their children’s safety, the allegations that they raise of the other, and where findings cannot be made. In those circumstances, I do not propose that the presumption will be applied.
Lest I am wrong in that regard, I am satisfied for present purposes that the presumption would, in all probability, be rebutted if findings of fact were made with respect to any of the allegations raised by the parties or either of them and certainly at this point in time, although I would be loath to rebut the presumption on that basis alone, the parents are not able to communicate well.
That cannot be a criticism of them. They separated just a week ago. If they are not presently in the best place emotionally and not able to deal with each other well as separated parents, something which they have only just begun to experience in any meaningful way - although they had a six week practice run earlier in the year - it is to be expected.
I do not propose to apply the presumption per section 61DA(3) of the Act. That being so, I am not obliged to consider equal or substantial and significant time. It does not preclude me from considering that arrangement, although I note that neither of these parents, both of whom I am satisfied are capable and competent, propose such an arrangement.
I must then turn to section 60CC of the Act and determine what is in the child’s best interests by reference thereto and incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations being:
a)The benefit to the children of having a meaningful relationship with both parents; and
b)The need to protect the children from physical or psychological harm through exposure of abuse, neglect or family violence.
Protection from harm is prioritised over all other considerations by subsection (2A). As I am satisfied that there is no unacceptable risk, I am satisfied that I need devote no significant time to a consideration of protection from harm. However, unacceptable risk is but one level of risk from which children need to be protected.
Clearly, each parent still raises, whether it is suggested to be unacceptable or otherwise, criticisms and concerns regarding the other’s capacity and the potential for the other to expose the children to abuse, neglect or family violence. Save to the extent that each alleges that the children have been present when incidents of family violence, whether physical or verbal, have occurred, there is no evidence that would satisfy any test as to protection.
I am also conscious that the allegations that are raised by the parties would have some difficulty establishing family violence as defined in section 4AB of the Act. It is difficult to see that alleged as a course of coercive and controlling family violence, that which the Act requires. However, there are allegations. I am satisfied they need not be considered further and that the parents’ separation will, in all probability, ensure that the children are not exposed to such behaviours if they have, in fact, occurred.
In relation to the benefit of these children of a meaningful relationship with both parents, it must be noted that the language of “meaningful relationship” is somewhat erroneous for children of this age. They are not capable of forming relationships. They are capable of forming bondings and attachments with parents. There may be some semantic difference in the terminology but it is important. A relationship is a two-way interaction. These children are not capable, or at least not Y, of engaging in such a relationship.
However, the building blocks of a meaningful relationship in the future will be founded in the children’s attachment with each parent and that will be best fulfilled through ensuring that arrangements are in place for each parent to continue their meaningful involvement in the children’s lives, providing parenting to them and spending regular and frequent time with them.
It is to be noted in that regard that the noun and verb “parent” both carry significant meaning. The fact that these parties are the parents of the children does not provide to them any specific right. The rights which apply under the legislation attach to children. It is only when an Order is made that a parent then obtains a right, a right to have that which the Order provides. It is the child’s right to a relationship and it is the child’s right to protection.
The rights which the parents have are confined to due process and those which are created under the Universal Declaration of Human Rights 1948. The benefit that these children will have, that which will support their meaningful relationship in the future, is derived from receiving competent parenting from each of their parents. Importantly, however, the parents need time and need a structured arrangement that will enable them to parent, not time that will enable each of them to spend a few hours with the child so that the child knows who they are but an opportunity to be actively engaged as their parent in parenting – changing nappies, feeding, preparing for bed, putting to bed, bathing, reading stories, engaging in a range of activities that are both supportive and provision of service to the child as well as engaging in entertainment and unstructured play.
Accordingly, I am not satisfied that an arrangement for day only time would meet that end for these children at this point. I propose to make Orders that will introduce overnight time to the parent with whom the children do not primarily live. There will be a preponderance of time with one parent. These are children who are very young and need a secure, stable home base. They need to know a home, even though they will now, hence forward in their lives, have two homes. They may well in the years to come have two different families - not only the families they already have but new partners and the like.
Those developments are all readily predictable. There are a variety of changes that these children will need to cope with. They will cope with those changes best if they have a strong bonding and attachment with each parent and that would best be achieved through regular time, once or more often per week, and including an opportunity to engage with the children’s care, particularly preparing them for and putting them to bed and getting them up in the morning.
I must also consider the additional considerations to which I now turn.
Views
These children are of an age where there is no real evidence as to their views and even if there were, it would be so far from dispositive as to verge upon irrelevant.
Nature of the children’s relationship with each parent and other persons
There is no specific evidence as to the children’s relationship with either parent. Both give evidence that the children come to them when they are upset and it is impossible to discern whether the children go to either parent or one more frequently. Again, mathematising the issue does not help. The children, clearly, are very familiar with each parent and very used to receiving care from them, care which has been of an entirely appropriate standard.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the children
Neither has.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The parents have done that jointly since the children’s birth. There is no evidence that would be of assistance otherwise.
Likely effect of change for the children, including separation from either parent or any other child or person
These children have lived, until very recently, with both of their parents. They are used to waking up with them both and seeing them. The mother gives evidence that Y has been particularly close with her, sleeping next to her in bed each evening until 8 December 2014.
Clearly, there will be an effect on these children of separation from either parent. That is unavoidable. These parents have determined to separate. If they determine to remain separated and, ultimately, divorce, that is entirely a matter for them but they must be aware that that will bring with it changes for these children. The Court must deal with these children today as best the Court can and that will be on the basis of trying to keep each parent in the children’s lives on a regular and weekly basis and with as little confusion as possible.
Confusion, however, is inevitable. Y at 18 months will be incapable of understanding the concept of living in two different homes. He will understand only that he has two parents whom he loves (as well as various other extended family members) and that he is no longer living with them both.
Practical difficulty and expense
I incorporate section 65DAA(5) of the Act being:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live relatively close together, four train stations apart, it would seem. The mother does not drive. The father does. That will, inevitably, mean that the burden of travel will fall on the father because the mother should not be required to transport the children by public transport when there is a readily available alternative. That is no way a criticism of public transport, a far more efficient means of traversing Sydney than by car and far more environmentally friendly. However, we are in the middle of summer and it is bound to be very hot and the children need not be moved about on trains when they can, for the sake of a 10 minute drive, be comfortably driven in an air-conditioned car.
As to the parents’ current and future capacity to implement an arrangement for equal time or substantial and significant time or, for that matter, any time arrangement, I am not satisfied that equal or substantial and significant time would meet these children’s needs. It is already a confusing time for them, their parents having separated 10 days ago. They need a home base and I am satisfied that they need both parents in their life regularly and frequently. However, they need to begin to adjust to the reality that they live in a home and that they have a second home that they spend significant time in. I am satisfied that this consideration would support an arrangement whereby there would be time twice per week, once overnight and once not. As neither parent is in paid employment and that arrangement is convenient and sustainable.
The children are not in school arrangements, although the older child was attending pre-school Thursday and Friday until separation and no doubt will return to that. I am loathe to interfere in it. That is an arrangement for this child that will give her social capital and stability. She should return to pre-school as a basis of normalcy for her now that her parents have separated. Accordingly, time will be structured to avoid interference with it.
The parent’s current and future capacity to communicate and resolve difficulties is limited but they have only recently separated. These are early days and the parties will be attending Family Counselling services to assist them in that regard. It would seem living in the (omitted) suburbs of Sydney that the (omitted) Family Relationship Centre would be the most appropriate venue for them to search out those resources which will be Court ordered.
The impact on the child I am satisfied is addressed above.
The capacity of each of the parents and other persons to meet the children’s needs
As would be clear from the above I am not satisfied that the evidence indicates, suggests or infers anything other than both parents have been actively and fully involved in the children’s care and upbringing since birth and that both are capable of meeting the children’s needs.
Maturity, sex, lifestyle and background of the children
These are tiny children whose parents have just separated. If these parents feel that they are in an emotional turmoil and confused they need, for one moment, to attempt to view the world through their children’s eyes. These children have no choice in their parents’ separation and very little understanding of why it is so. They only know that it is upsetting, confusing and made all the more so by the fact they have not seen their mother now for some 10 days.
Aboriginality
Neither parent identifies as Aboriginal or Torres Straight Islander, nor are the children.
The attitude to the children and responsibilities of parenthood demonstrated by each parent
I am satisfied that each of the parents are, with the limitations and caveats arising from the criticisms each has made of the other, capable of forming and has expressed and demonstrated an appropriate attitude towards their responsibilities.
Family violence
Each alleges family violence. A detailed consideration of those allegations is not of assistance in determining this case. That is not to suggest that family violence is not important. Family violence is fundamental to everything that the Court does. However, the allegations that each make are largely situational, particularly those surrounding separation and the subject of the complaint for the Apprehended Domestic Violence Order and, as each raises complaints, it is difficult to differentiate the greater risk, if any, that might arise.
Family violence orders
There is an interim Order in force obtained by the father. The interim Order would not appear to impose extensive prohibitions upon the mother and, in any event, it is clear that those proceedings are contested. The circumstances in which the Order has been made and the complaint brought before the Court is discussed above. The matters that are raised would not appear, in essence, and from a cursory examination of them, to warrant Police involvement.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
I am satisfied that this can best be achieved at this point by making Orders for the parties to participate in Family Counselling services. They are 10 days separated. They need substantial support and assistance. That is the very thing that an Order under Part II of the Act is intended to provide.
Family Counselling services are available to assist parties, at little or no cost, to deal with and address matters which arise from their separation from each other, provide support to them and to assist them in their transition from an intact family to separated parents who have co-parenting responsibilities and need to develop and enhance their parental alliance with each other.
The evidence of the parties would suggest that communication between the parties prior to separation had deteriorated and has never been particularly good. Accordingly, any assistance the parties can receive in developing more effective communication strategies now they are separated would be desirable.
In all of those circumstances, I am satisfied that Orders should be made which see the children living predominantly with one parent and spending time with the other for the day on a mid-week day and each weekend from Saturday lunchtime until Saturday afternoon/evening. I am satisfied on the basis of the evidence that this arrangement would best preserve as much stability and as much common and familiar arrangement in these children’s lives as possible and that is best achieved through the children living primarily with their mother.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 17 September 2015
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).
See also sections 14-16.
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Areas of Law
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Family Law
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