De Maio and Auguste
[2012] FMCAfam 173
•9 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DE MAIO & AUGUSTE | [2012] FMCAfam 173 |
| FAMILY LAW – Children – allegations of family violence – where mother and the ICL both oppose father spending time with the children – assessment of risk – no unacceptable risk of abuse – whether appropriate to make findings that alleged abuse did not occur – assessment of parenting capacity – nature of children's relationship with father – proceedings adjourned for approximately 12 months to assess development of children's relationship with father. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules2001 Federal Magistrates Court Regulations |
| A v A (1998) FLC 92-800 B & B (1993) FLC 92-357 Carpenter and Lunn (2008) FamCAFC 128 Champness & Hanson (2009) FamCAFC 96 Chappell (2008) FamCAFC 143 Collu & Rinaldo (2010) FamCAFC 53 Exelmans & Sully (2011) FamCA 3 Fitzpatrick (2005) FLC 93-227 Goode (2006) FLC 93-286 H & P (2005) FamCA 978 Hungerford & Tank (2007) FamCA 637 Irvine (1995) FLC 92-624 Jets & Maker (No.2) (2011) FMCAfam 1473 Johnson and Page (2007) FLC 93-344 M & M (1998) FLC 91-979 M & S (2006) FamCA 1408 Marsden & Winch (No.3) (2007) FamCA 1364 McCall & Clark (2009) FLC 93-405 McLeay (1996) FLC 92-667 Mills & Watson (2008) 39 Fam LR 52 MRR v GR (2010) FLC 93-424 Pender & Haywood [2007] FamCA 1526 Re Andrew (1996) FLC 92-692 Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334 Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 Re: F – Litigants in Person Guidelines (2001) FLC 93-072 Roberts & Banks (2011) FamCA 662 Saxena (2006) FLC 93-268 Sealey & Archer [2008] FamCAFC 142 Sedgley (1995) FLC 92-623 Taylor & Barker (2007) FamCA 1246 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 Watkins & Minnow (2010) FamCA 1059 |
| Applicant: | MR DE MAIO |
| Respondent: | MS AUGUSTE |
| File Number: | MLC 767 of 2010 |
| Judgment of: | Walters FM |
| Hearing dates: | 19 – 22 September 2011 |
| Date of Last Submission: | 22 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the Respondent: | Mr Henwood |
| Solicitors for the Respondent: | Randles Cooper & Co Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Mr Grigg |
| Solicitors for the Independent Children’s Lawyer: | Perry Weston |
ORDERS
IT IS ORDERED THAT:
The mother have sole parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2010 (“the children”).
The children live with the mother.
Notwithstanding paragraph 1 above, in exercising sole parental responsibility in relation to major long-term issues, the mother must:
(a)consult the father in relation to any decision to be made about the relevant issue;
(b)make a genuine effort to come to a joint decision about the issue; and
(c)in the event that the parties are unable to come to a joint decision about the issue, notify the father of any decision relating to the issue within seven days of making such decision.
Each party must:
(a)advise the other party immediately in the event that either child suffers any serious illness or injury; and
(b)authorise any medical professional upon whom either child may attend from time to time, to communicate with the other party regarding the child’s condition and/or requirements.
The mother must authorise all schools/kindergarten in which the children may attend from time to time to:
(a)provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs in relation to the children; and
(b)permit the father to attend all school functions (including school concerts or parent/teacher interviews) to which parents are ordinarily invited.
Nothing in the within orders shall prevent either the father or the mother from having either child treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment;
(b)the medical or other complaint for which the child was taken to the medical professional;
(c)any treatment and/or medication prescribed for or provided to the child; and
(d)the reasons for the prescription for or provision of such medication and/or treatment.
The father spend time and communicate with the children on an unsupervised basis at times to be agreed between the parties as follows:
(a)for a period of three months commencing from the date of these orders; twice per week, for a period of two hours on each occasion;
(b)thereafter, for a period of three months; twice per week, for a period for two hours on one occasion and three hours on the other occasion;
(c)thereafter, for a period of three months; twice per week, for a period of two hours on one occasion and four hours on the other occasion; and
(d)thereafter, until the matter returns for hearing: twice per week for a period of two hours on one occasion and five hours on the other occasion.
and in the event of no agreement, the parties shall have liberty to apply to the Court.
The contact periods referred to in paragraph 7 above must include time on the children’s birthdays and on occasions that are important to the father from a family or religious point of view.
Until further order, the father’s time spent with the children pursuant to paragraph 7 of these orders, shall take place with the changeover at the Contact Centre, or, if not available changeover is to take place at the police station or other public and secure venue as agreed by the parties and in the event of no agreement as nominated by the Independent Children’s Lawyer.
The appointment of the Independent Children’s Lawyer shall remain in place until the completion of the proceedings or otherwise until further order.
Until further order, the parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, and
(b)discussing these proceedings, to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.
Both parties must attend and complete, as soon as practicable, an appropriate Parenting Orders Program (such as, for example, the [omitted] – Parent Orders Programm) or other appropriate course or service (“the Program”) at such organisation as shall be specified by the independent children’s lawyer after consultation with the Senior Family Consultant in the Melbourne Registry of this Court, and, further, each party must;
(a)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(b)pay and otherwise be responsible for all costs associated with the Program; and
(c)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;
(d)without affecting the generality of the above requirements ─ as and when requires satisfactorily participate in and complete all recommended parts of the Program (including, but not limited to, some or all of the following:
(i)any relevant intake course or process, parent group, children’s group, individual sessions for parents and children; child focused mediation and/or Children’s Contact Services; and
(e)provide an appropriate certificate of completion of the Program to the solicitors for the other party, and to the independent children’s lawyer.
For 24 hours immediately prior to the commencement of any time spent with the said children (including any period during which the said children live with him), and during all such time spent, the father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
Until further order, the father do undertake supervised drug screen testing (“the Testing”) as follows:
(a)the Testing do occur at a pathology centre or other appropriate place, as approved by the solicitors for the independent children’s lawyer from time to time;
(b)the Testing do occur randomly (but not less frequently than twice in each calendar month), and within 48 hours of the solicitors for the independent children’s lawyer making an appropriate request for the Testing to occur; and
(c)the results of the Testing, on each occasion, be forwarded ─ as soon as possible ─ to the solicitors for the mother and independent children’s lawyer.
In the event of the father failing to comply with paragraph 15 of these orders or failing or refusing to undertake a supervised drug screen without a valid excuse having been provided to the Independent Children’s Lawyer, the Independent Children’s Lawyer must file an immediate application in a case seeking orders for the suspension of the father’s contact with the children.
The independent children’s lawyer must provide a copy of these orders to the Department of Human Services within 14 days.
The proceedings otherwise be adjourned to a date to be advised in March 2013.
AND THE COURT NOTES THAT:
Pursuant to s 65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym De Maio & Auguste is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 767 of 2010
| MR DE MAIO |
Applicant
And
| MS AUGUSTE |
Respondent
REASONS FOR JUDGMENT
Preamble
This case is about the parenting arrangements for [X] and [Y]. [X] is three years of age, and [Y] is just under two years of age. The girls were born [in] 2009 and 2010 respectively.
The children's parents are Mr De Maio (formerly Sutherland, or Stacey, Muncan) and Ms Auguste, but I shall refer to them as "the father" and "the mother" in these Reasons.
It is not in dispute that the children should continue to live with the mother. The primary question for determination in the proceedings is whether the father should be permitted to spend time with them. The mother's case is that the father should not be permitted to spend any time with them. The father's case is that he should be permitted to spend such time with his children as the Court considers appropriate, and that they should not be prevented from having a relationship with him.
The Independent Children's Lawyer supports the mother's case.
For the sake of clarity (and brevity):
a)I shall refer to the independent children's lawyer as the ICL; and
b)I will record, at this stage, that the mother was represented at trial by Mr Henwood of counsel, the father was self represented and the ICL was represented by Mr Grigg of counsel.
Although the law now refers to a child “spending time” with a person with whom the child does not live,[1] from time to time in these Reasons I shall use the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, s.64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
All statements of fact in these Reasons comprise findings of fact.
Introduction/Background
The father was born in 1973, and is now 39. The mother was born in 1982 and is now 29.
The parties commenced a relationship in early 2007 and separated in early November 2009. As indicated above, [X] was born in 2009 and [Y] was born in 2010. It follows that [Y] was born after the parties separated.
The mother had originally asserted that [Y] was not the father's child. The issue of paternity was later resolved by appropriate testing procedures, and there is now no dispute that the father is [Y]'s parent.
The nature of the parties' cohabitation is less than clear. It would appear that they did not live together, but that the mother would stay with the father (at the home of his parents) very regularly – perhaps as many as five nights per week.
According to the mother, [X] has never stayed overnight with the father. Further, the father was never involved in bathing [X], or in changing her or feeding her. She said that she lived with her mother after [X] was born and did not stay overnight with the father at any stage after the birth.
According to the father, he was heavily involved in [X]'s care. In paragraph 15 of his affidavit sworn 25 January 2010, the father said that he would feed, change and bathe [X]. He would also look after [X] when she woke in the middle of the night. He added that he has "28 nieces and nephews that I have actively helped in raising which has provided me the skills to responsibly care for [X]".
The mother has had what she describes as "issues of drug use". Until approximately 2008, she was a heroin user. She then commenced on a methadone program. She has been involved in minor criminal activity (for example, shoplifting) on four or five occasions while under the influence of drugs. The mother is "still on prescribed methadone".
According to the father, the mother continued to use heroin while she was on the methadone program. He said that he had seen her using heroin in "our bedroom" in approximately June 2009, and in the kitchen in approximately July 2009. He added that she admitted having taken heroin on these occasions.
The father also has a history of drug use, the details of which are less than clear. Clearly, the drug use involved a heroin and marijuana. He has been on a methadone program approximately 4 years.
The mother asserted that she was subjected to serious physical and verbal abuse by the father. For example, in paragraph 12 of her trial affidavit she deposed as follows:
… on or about 1 November 2009 at approximately 11 a.m., after (the father) began to verbally abuse me for not turning off the kettle at the wall, he went to the shed, retrieved a stick similar to a baseball bat with nails at the end of it and began to hit me with that instrument. I estimate that I was hit with the bat for approximately 5 minutes all over my body. (The father) kept saying things like "if you try to leave I'll kill you", "if you call the police I will kill them" and "I will kill the baby as well". I was able to get away from the father into another bedroom. He then again threatened to kill me if I tried to leave and told me that he would hunt me down and kill me and stab myself and my brother.
I shall refer to this incident as "the baseball bat incident".
The father's version of the baseball bat incident appears in paragraphs 16 and 17 of his earlier in affidavit as follows:
On 1 November 2009 the mother and I had an argument about the care arrangements for [X]. I was concerned that the mother was not properly caring for [X] when I was not present, as [X] would often appear hungry or her nappy was not changed when needed. She became angry in response to my comments and pushed past me, shoving my shoulder as she left the room. As I was upset, I pushed the mother back. In response to this the mother grabbed my hair and we struggled as I tried to get her off me.
I left a home for approximately an hour and a half to allow the mother to come down and to get some food for us. When I returned home the mother and [X] had left, taking some belongings with them. …
On 5 November 2009, the mother applied for and obtained an intervention order against the father from the State Magistrates Court at [Suburb A]. The mother and [X] were recorded as the affected family members, and the facts relied upon in support of the complaint recited the baseball bat incident. The Intervention order was for a period of 12 months.
When he was interviewed by the police, the father denied that he had hit the mother with a bat. Somewhat surprisingly (in the light of the seriousness of the allegations raised by the mother), the father was not charged with any offence arising out of the baseball bat incident.
The father consented to the intervention order granted on 5 November 2009 because he believed "this is what the mother wanted", and because he "wanted to keep the peace between us so I could continue to see [X]".[2] He did not receive any legal advice in relation to the intervention order.
[2] see paragraph 21 of the father's earlier affidavit
The mother also asserted that the father physically abused [X]. For example, in paragraph 13 of her trial affidavit the mother deposed as follows:
… (From) the time that [X] was only one month old, (the father) physically abused [X]. These incidents of abuse (included) banging [X]'s head against doors and walls and slapping her across the face, he would often place his mouth on [X]'s mouth and occasionally she would stop breathing and had to be resuscitated. He continually threatened to kill me and the child if I did anything about this.
On or about 9 November 2009, the mother and [X] were referred to a Refuge ([omitted]) for accommodation and domestic violence support. They moved to transitional housing approximately one month later.
On 28 January 2010, the father filed an initiating application. He sought final orders to the effect that the parties have equal shared parental responsibility for [X] and that she live with him. He also sought a final order to the effect that [X] spend such time with the mother "as deemed appropriate by the Court".
The father also sought a Commonwealth Information Order, because he did not know where the mother was living.
In his affidavit, the father asserted that the mother often failed to properly care for [X]. For example, he said:[3]
On one occasion, in October 2009, I came home to find [X] on the couch; I searched the home but could not find the mother. She had left the home and not taken [X] with her. I drove around to try and find the mother … (When I found her) she appeared to me to have taken heroin.
There have also been times when I have discovered that the mother has failed to feed [X] and she has been without food for several hours, even up to 10 hours on one instance.
[3] see paragraphs 32 and 33 of the father's earlier affidavit
On 10 March 2010, on the first return date of the father's initiating application, an order was made pursuant to section 91B of the Family Law Act 1975 inviting the Department of Human Services to intervene in the proceedings. The application was otherwise adjourned to 12 April 2010.
The proceedings were brought to the mother's attention between 10 March and 12 April 2010. On the later date, both she and the father were represented. Orders were made to the following effect:
a)[X] was to live with the mother until further order;
b)the father was to spend time with [X] each Saturday and Wednesday from 12 noon to 3 p.m. and at such other times as may be agreed between the parties;
c)changeovers were to occur at [Suburb A] police station;
d)the father's contact with [X] was to be supervised by the father's father or his mother;
e)an ICL was appointed;
f)a family report was ordered;
g)mutual non-denigration orders were made;
h)mutual injunctions restraining the parties from abusing drugs were granted;
i)mutual drug testing regimes were put in place; and
j)the proceedings were adjourned to 23 June 2010 for an interlocutory hearing and 27 September 2010 for final hearing
On 23 June 2010, the matter came back before the Court. The mother, the father and the ICL were all represented. Orders were made to the following effect:
a)the previous orders relating to contact, changeover and supervision were discharged;
b)the father was to have contact with [X] as follows:
i)each alternate Thursday from 10 a.m. to 12 noon at [omitted] Contact Centre in [Suburb B];
ii)each alternate Thursday from 12 noon to 2 p.m. (or such other time as may be facilitated by the Centre), with changeovers to take place at [omitted] Contact Centre; and
iii)at such other times as may be agreed; and
c)the father's contact with [X] that was to take place away from the Contact Centre was to be supervised by the father's mother.
The Mother alleged that from late June 2010 to early August 2010, the father sent her a number of abusive and threatening text messages. They included threats to kill the mother and threats to kill [X]. I shall refer to these text messages as "the threatening text messages". The threatening text messages are recorded in paragraph 23 of the mother's trial affidavit. The father denied that he sent the threatening text messages, although he admitted sending other text messages to the mother (which text messages related to the children).
The threatening text messages were not sent from the father's mobile phone. The evidence revealed that they were or were probably sent from a public telephone.
To the extent that some of the words in the threatening text messages are in Turkish, the father asserted that he does not speak Turkish but that he speaks Arabic.
On 25 August 2010, the matter came back before the Court. The mother, the father and the ICL were all represented. The earlier order to the effect that [X] spend additional time with the father away from the Contact Centre was suspended and an order made that, if possible, the father should spend the additional two hours per fortnight with [X] at the Contact Centre.
The proceedings returned to court on 27 September 2010, which was to have been the first day of the trial. Again, both parties and the ICL were represented. Given that the mother had raised a serious issue as to whether the father was [Y]'s parent, the trial could not proceed. Hence, orders were made to the following effect:
a)an appropriate parentage testing procedure was to be carried out;
b)the proceedings were adjourned to 26 November 2010 for an interlocutory hearing to deal with the possibility of the need to appoint an ICL for [Y], among other things; and
c)a new trial date was fixed for 27 January 2011.
Further interlocutory orders were made on 26 November 2010. The parentage testing had not been completed by that time and the proceedings were adjourned to 20 December 2010.
No orders were made on 20 December 2010, and the proceedings were simply adjourned to 27 January 2011 (being the trial date).
The trial did not proceed on 27 January 2011 because the mother had not fully complied with the orders for parentage testing. The solicitor appearing for her advised that there had been some communication difficulties with the mother and that she was, in effect, unaware of obligations pursuant to the order for parentage testing.
The proceedings were then adjourned to 28 February 2011 (for mention only) and 29 August 2011 for trial.
On 28 February 2011, the proceedings came back before the Court. The mother, the father and the ICL were all represented. It was reported that the parentage testing had revealed that the father is indeed [Y]'s father. As a result, orders were made to the following effect:
a)the ICL's appointment was extended to include [Y];
b)the previous orders for contact were varied to provide that [X] and [Y] spend time with the father at [omitted] Contact Centre at such times as may be advised by the coordinator of the Centre;
c)an updated family report was ordered; and
d)the proceedings were listed for mention on 13 May 2011.
No substantive orders were made on 13 May 2011, and the matter remained on track for trial later in the year.
For administrative reasons, the trial date was later altered to early September 2011. Given that the father had recently become self represented, the trial date was again adjourned to 19 September 2011.
The trial commenced on 19 September 2011. It continued on 20, 21 and 22 September 2011.
The only witnesses who gave evidence at the trial were the father, the mother and Ms B. As indicated elsewhere, the father was self represented at the trial. The mother and the ICL were represented by counsel.
The accommodation arrangements for the children were not in dispute. They live with the mother in a rented two bedroom home.
The father does not pay child support for the children. It appears that he has never done so.
The father was self-represented
Given that the father was self-represented, I was very conscious of the obligation upon the Court to provide a fair trial – for both parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072.[4] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was indeed fair. In summary:
a)Procedural fairness was afforded to both parties.
b)The "mechanics" of the trial, and the right of each party to cross examine the other (and to call witnesses or otherwise adduce evidence), were explained to the father.
c)Other relevant procedures were explained to the father as they arose.
d)I explained to the father that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of the father’s submissions, and did my best to draw his attention to the law to be applied in determining the issues.
f)Where appropriate, I took steps as authorised by the Full Court in Guideline #9 in paragraph 253 of the decision in Re: F – Litigants in Person Guidelines.
[4] See, in particular, paragraphs 209-253 of the decision.
In Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on" . His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".
I have no doubt that the father fully understood exactly "what was going on" at all times during the course of the trial.
It needs to be added that these proceedings had been in my docket since their inception. On the occasions when the father appeared without legal representation, I urged him to obtain such representation and, where appropriate, referred him to the duty lawyers in the court precincts.
The competing proposals
The mother's proposals (which are supported by the ICL) are that:
a)she should have sole parental responsibility for the children;
b)the children should live with her; and
c)the father should have no contact with the children.
The father concedes that the children should live with the mother. He wishes to have contact with them and is prepared to abide by any order the Court considers is appropriate in that regard. He also wishes to have equal shared parental responsibility for the children.
Documents relied upon
The father relied on the following documents:
a)his initiating application filed 28 January 2010;
b)his response filed 30 August 2010;
c)his affidavit sworn 25 January 2010 and
d)his affidavit sworn 24 August 2010.
The mother relied on the following documents:
a)her outline of case document (handed up by her counsel, Mr Henwood, on 19 September 2011);
b)the response filed 9 April 2010;
c)her interim application filed 17 August 2010; and
d)her affidavit sworn 30 August 2011.
The ICL relied on the following documents:
a)a summary of argument document filed 2 September 2011;
b)affidavit of Ms B sworn 23 September 2010 (attaching her report dated 15 June 2010);
c)affidavit of Ms B sworn 5 September 2011 (attaching her report dated 2 May 2011); and
d)affidavit of Ms R sworn 22 September 2010.
Parenting Orders – The Law[5]
[5] This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) (2011) FMCAfam 1473
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975. Much of Part VII reflects comprehensive amendments to the pre-existing law, which came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long term issues in relation to the child”.[6] Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long term issue in relation to a child ─ although such a decision could involve a major long term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[7]
[6] See s.64B(3)
[7] See the definition of "major long term issues" in s.4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision.[8] Such consultation is not required in relation to issues that are not major long term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[9]
[8] See s.65DAC; see also Pender & Haywood [2007] FamCA 152656
[9] See s.65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
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.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[10]
[10] See s.60B(1)
… to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[11]
[11] See s.60B(2)
… that (except when it is or would be contrary to a child's best interests):
· 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
· 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
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[12]
[12] See s.60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[13] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[13] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s.60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[14]
[14] This list is not intended to be comprehensive. It is simply a summary of the factors in s.60CC(3). The actual factors set out in s.60CC(3) – or, more accurately, those of them that are relevant – will be considered later in these reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent 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 as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)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
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[15] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[16]
[15] See s.60CC(4A)
[16] See s.60CC(4)(c)
Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them.[17] Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings.[18] Further:[19]
Not only must the "additional" considerations be taken into account, but the two "primary" considerations themselves may tend in different directions.
… (It is not necessary to determine whether other factors serve to) "displace" one of the primary considerations. Rather, (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child's best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
[17] See Champness & Hanson (2009) FamCAFC 96 at para.101
[18] See Marsden & Winch (No 3) (2007) FamCA 1364
[19] See Marsden & Winch (No 3) at paragraphs 77-8
In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents", although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances.[20] Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
[20] See McCall & Clark (2009) FLC 93-405 paragraphs 117-22
The Full Court in Goode summarised the above process as follows:[21]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[21] See para.10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[22] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[23]
[22] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[23] See s.65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[24] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[24] See s.61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[25] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[26]
[25] See s.61DA(2) and the definition of "family violence" in s.4(1)
[26] See s.61DA(3); it is important to note, however, that the Full Court in Goode (at para.78) held that the discretion in s.61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[27]
[27] See s.61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[28]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[29] and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect.[30] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[31] with each parent would be both reasonably practicable[32] and in the best interests of the child. If it is both of these things is, then the court must consider whether it should make an order to that effect.[33]
[28] See, for example, Goode at paras.46 and 47, and Pender & Haywood [2007] FamCA 1526 at para.44
[29] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[30] See s.65DAA(1)
[31] "Substantial and significant time" is defined in s.65DAA(3)
[32] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[33] See s.65DAA(2); see also Goode at paras.43 and 44
In MRR v GR (2010) FLC 93-424, the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[34]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[34] See para.62; see also Sealey & Archer [2008] FamCAFC 142
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[35]
[35] See para.63
In Mazorski & Albright,[36] Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose,[37] Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3).[38]
[36] (2008) 37 Fam LR 518
[37] (2008) FLC 93-375
[38] See also Collu & Rinaldo (2010) FamCAFC 53, at paragraph 335
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[39]
[39]The relevant steps (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable that the child spend equal time with each parent?
h)If both the above questions are answered in the affirmative, then consider making an order for equal time, but the court is not obliged to make such an order.
i)If the section 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
i)Is it in the best interests of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable that the child spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent, but the court is not obliged to make such an order.
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the Family Law Act. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment of whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[40]
[40] See Goode at para.65.8
Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[41] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[42]
Family violence[43]
[41] See Goode at para.65.11
[42] See Goode at para.65.9
[43] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) 39 Fam LR 52
The mother asserted that she was the victim of family violence perpetrated by the father. She also asserted that [X] was the victim of family violence perpetrated by the father. There was no such allegation in relation to [Y].
In relation to the subject of family violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
· The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
· It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
· In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
· There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s. 60CC of the Family Law Act 1975.
In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. Too often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs, and note the approach that I have described was approved by Benjamin J in Watkins & Minnow (2010) FamCA 1059 (unreported).
Unacceptable Risk
The concept of "unacceptable risk" is also relevant in the present context. The concept has its genesis in the decision of the High Court in M & M (1998) FLC 91-979. In that case, the High Court was dealing with a parenting case in which there had been allegations of sexual abuse.
The High Court said (at page 77,081):
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…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 (emphasis added).
In B & B (1993) FLC 92-357, the Full Court said:
…a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated: "Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her". (Emphasis added.)
Therefore, if supervised access poses an "unacceptable risk" of harm (or "disturbance"), whether physical, emotional or psychological, it should not be granted.
In A v A (1998) FLC 92-800, the Full Court considered the concept of "unacceptable risk" in the context of contact proceedings. After referring to M & M and B & B, the Full Court said (at page 84,995):
The task which (the Court) was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
… the primary question which (the Court) should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
In Roberts & Banks (2011) FamCA 662, Ryan J summarised the relevant principles to be applied in determining abuse allegations. In doing so, her Honour concluded the summary as follows:
31. The onus of proof in the civil standard of proof in accordance with s 140 of the Evidence Act. As the Full Court in Johnson and Page (2007) FLC 93-344 said, a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
32. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page.
33. The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.
The question of the impact on a residence parent of permitting contact (or supervised contact) when the residence parent genuinely believes that a serious, unacceptable risk of harm to a child exists has been the subject of a number of cases.[44] Although the test to be applied in contact cases must ultimately be distilled down to determining what order is in the best interests of the child, the Court can conclude that contact may not be in a child’s best interests where, for example, there is "…such tension or hostility between the parent with the care of the child (or his or her partner) on the one hand, and the person seeking contact on the other, that this is likely to be exacerbated by contact, with resulting detrimental effects on the child", or "…where contact would cause the parent with the day to day care of the child considerable anxiety, and this is likely to affect the child adversely".[45]
[44] See, for example, Sedgley (1995) FLC 92-623, Irvine (1995) FLC 92-624, Re Andrew (1996) FLC 92-692, A v A (1998) FLC 92-800, Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 and Fitzpatrick (2005) FLC 93-227
[45] See Dickey “Family Law” (4th Ed) at pp 450-1
In Re Andrew (1996) FLC 92-692, the Full Court declined to overturn a trial Judge’s decision not to allow a father to have face to face contact with his child. The trial Judge had found that the wife’s genuine fear of the husband was a major impediment to contact. That meant that the mother’s care giving capacity would be impaired if contact was permitted — to the extent of being detrimental to the child’s welfare. In Sedgley (1995) FLC 92-623 the Full Court recognised that “the need for peace and tranquillity” in a residence parent’s household may be a more compelling need for a child than contact with the non-residence parent.
The Full Court in Sedgley also considered the trial Judge’s decision to give contact "one last try". The father (who had previously been declared a vexatious litigant) had carried out "a number of provocative acts", which had the effect of placing the mother under considerable stress (and which, in turn, affected her wellbeing and parenting). The Full Court concluded that the case "had reached that unfortunate point where a Judge is virtually compelled to say that, until the Court could be persuaded that the child’s welfare required (contact) to be reinstated, there should be no further (contact)" .
The Full Court then continued (at page 82,260):
The type of circumstances that might lead to reinstatement of (contact) would include convincing evidence that there had been a change in the husband’s behaviour which change could be sustained, and which change had been brought on after extensive therapy, or some maturation process. Another circumstance that may be thought to call for the reinstatement of (contact) would be convincing evidence that the child’s state had deteriorated because of the absence of (contact).
The Full Court added that the Court could also give consideration to the reinstatement of contact where the residence parent accedes to the proposition.
The Full Court emphasised (at page 82,260) that the decision to cut the relationship between a parent and a child is one which ¾ ordinarily ¾ the Court takes only with considerable hesitation.
In H & P (2005) FamCA 978 (unreported), Carter J said [46]:
[46] at paragraphs 502-5
I look to the proposition advanced by the Full Court in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 that:
the termination of a worthwhile relationship between a parent and child ought, in most cases, be the course of last resort.
Moreover s 60B(2) of the Act of itself assumes the continuation of a relationship between children and each of their parents as being worthwhile if other factors do not act to countervail that position. …
I also note that in Re W (supra) after the citation I have just noted, their Honours had this to say:
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial system often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than the erroneous positive finding that leads to a cessation of a parent/child relationship. The Court needs to be and remain conscious of this imperfection at all times.
… (The) best interests of the child is the paramount consideration of the Court, however, it is not the only consideration. The Court is also required to have regard to the legitimate interests and desires of the parents, however if there is a conflict between those considerations, then priority must be accorded to the child’s welfare and rights.
In Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993), the Full Court recognised that "an appropriate consideration" is the residence parent’s belief that a child has been sexually abused whilst on contact and the effect of that belief on him or her as the primary caregiver. Consideration should always be given to whether a risk exists to the effect that a child's relationship with the residence parent might be undermined by the conduct of the contact parent during contact periods. The Full Court held that, in upholding a child's right to protection from sexual, psychological and/or emotional harm, "… the Court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact and adversely on that parent’s care giving ability".
The interrelationship between the issue of (unacceptable) risk and the effect on the mother of contact if it is to be ordered was clarified by the Full Court in A v A at page 84,996. Their Honours made it clear that the first step in the exercise (as it were) is to determine – on the whole of the evidence – whether contact might expose a child to an unacceptable risk (in whatever form). It is only in cases where the judicial officer reaches a conclusion that objectively there is no unacceptable risk that the Court would need to turn to the separate question of the residence parent's belief in the occurrence of the events in question as a separate matter. The relevant passage is at paragraph 3.29 of A v A, and is as follows:
The first inquiry is whether there is objectively an unacceptable risk. If there is, the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the residence parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
Clearly, the Court must look to the evidence to determine whether the residence parent has a genuinely held belief that an unacceptable risk of abuse exists. Similarly, the court must look to the evidence to determine whether such a belief, if it exists, it is likely to have an impact on that party's capacity to care for and supervise the child or children. Where no such evidence exists, the court should not make assumptions or draw inferences that may have the effect of terminating a meaningful potentially meaningful relationship between a parent and his or her child or children.
Ms R's evidence
Ms R is a qualified social worker. She is the Coordinator for the Children's Contact Service at [omitted] ("[omitted] Contact Centre").
Ms R swore an affidavit on 22 September 2010, attaching a report from [omitted] Contact Centre. She was not required for cross-examination and I have no reason, therefore, not to accept the evidence contained in the report.
The report refers to visits on 5 and 19 August, and 2, 9 and 16 September 2010. The first visit (on 5 August 2010) did not proceed because the mother did not attend.
The second visit (on 19 August 2010) appeared to be successful. The father demonstrated that he was capable of following directions. [X] related to him appropriately and displayed affection towards him (by, for example, touching his face). They laughed, and [X] appeared happy. When [X] displayed signs of tiredness, the father reacted appropriately. Nothing of concern appeared to occur during the visit.
The third visit (on 2 September 2010) appeared to be less successful. Although [X] displayed some initial reluctance to interact with the father, she later played with him, but seemingly with less enthusiasm than on the previous occasion. Still, the father was appropriately affectionate towards her, and [X] laughed from time to time.
The fourth visit (on 9 September 2010) appeared to be successful. Although [X] was upset and cried at the beginning and at other times during the visit, the father managed her behaviour appropriately. The worker who supervised the contact told the mother that [X] had had a good time.
The fifth visit (on 16 September 2010) also appeared to be successful. Again, although [X] was upset and cried at the beginning and at other times during the visit, the father managed her behaviour appropriately. The worker who supervised the contact on this occasion told the mother that [X] "had a good time, playing outside, squealing with delight".
Exhibit F1 comprises a further report from [omitted] Contact Centre. It refers to a further 15 visits which occurred between 7 October 2010 and 12 May 2011 (as well as two visits which did not occur during that period).
These later visits appear to have been successful, although there were times when [X] cried or made "whining noises". The father related well to [X] and was patient with her. He showed her affection and kindness. On occasions, [X] kissed him or showed affection towards him. For example, during a visit on 17 February 2011, [X] ran to the father at the commencement of the session and sought him out during it. She seemed reluctant to leave him at the end of the session. She behaved similarly during the visit on 3 March 2011.
[Y] was also present at the visit on 3 March 2011. Although she was upset for part of the time, the father was able to settle her. She was not inconsolable for extended periods of time, as Ms B's report seemed to suggest.
The visits on 17 March and 15 and 28 April 2011 appeared to be particularly successful from the point of view of both girls, who seemed to be happy to be in the father's presence. By the final reported visit (on 12 May 2011), [Y] appeared very comfortable on the father's care and happy to settle with him. [X] competed for the father's attention.
The [omitted] Contact Centre reports show the father to be a loving, attentive and caring parent. They also reveal that he has the capacity to behave towards the [omitted] Contact Centre workers in a manner that displays a lack of tact, but is not otherwise threatening or discomforting. From the point of view of the father's interaction with [X] and [Y], however, the report is in stark contrast to Ms B's observations (which I shall discuss below).
I find that the reports reveal that the girls are clearly developing appropriate relationships with the father, and that they feel secure with him during the periods of the visits. The reports also reveal that the father is a capable and responsible caregiver.
I would add that the reports also reveal that the mother has the capacity to behave in a manner that displays a lack of tact.
Ms B's evidence
Ms B has qualifications in both law and psychology.[47] No attack was made on either her qualifications or experience during the course of the trial. It was accepted by all parties that she is an experienced family report writer.
[47] Details of Ms B's educational background, professional qualifications and experience are included in her affidavits
As indicated above, Ms B provided two reports. The first is dated 15 June 2010. The second is dated 2 May 2011.
Ms B's first report (15 June 2010)
At the time of the preparation of this report, [X] was the only child the subject of the proceedings.
Ms B recorded that the father made statements to her to the following effect:
a)He changed his name (both first name and surname) approximately 10 years ago because of conflict with his family, and in particular his brothers. He claimed, however, that he has since resolved his differences with his family.
b)He was reluctant to admit the extent of his drug use and gave inconsistent accounts of when he commenced using heroin. He appeared to suggest that the mother was responsible for his involvement with heroin. Although he used heroin for only one year (in 2007), he continues to be on a methadone program – which he commenced in that year. In Ms B's opinion, "the pattern he describes meets the diagnostic criteria for opiate dependence with sustained partial remission with pharmacotherapy".
c)He denied having been violent to the mother during the relationship, save at the time of separation. He also denied making threats to kill the mother.
d)He was highly critical of the mother (asserting that she was a bad mother) and accused her of continuing to use heroin. He also accused her of infecting him with hepatitis C.
e)He denied that he had ever hit or hurt [X].
f)He said that he has enjoyed spending time with [X], and that all contact periods have been successful. Although [X] cries for a short time after leaving her mother, she later calms down and enjoys herself.
g)He confirmed that he does not seek orders to the effect that [X] live with him. He accepts that [X] needs the mother more than she needs him, but he would like to spend as much time as possible with [X].
Ms B's observation was that the father showed very little interest in [Y]. At that stage, he assumed that he was her father, but had some doubts in that regard. I note that this was very shortly after [Y]'s birth, and well prior to the parentage testing procedures having been carried out.
Ms B recorded that the mother made statements to her to the following effect:
a)The mother spoke at length about the alleged violence and abuse that she had endured during her relationship with the father. She said that he was "very violent" towards her and [X] and that he was also extremely jealous and controlling. She claimed that she was beaten often.
b)In relation to the family violence to which she had been subjected, she said that this included:
i)being grabbed by the hair and slapped and punched;
ii)being repeatedly hit with the father's belt;
iii)being hit with a baseball bat (as described in the baseball bat incident); and
iv)being hit with an indoor clothes horse and a child's high chair.
c)The mother said that the father had an uncontrollable temper and would hit her with things "even in public when in the company of others". The mother continued:
She often had bruises but was too frightened to tell anyone and would hide them especially from her mother. The verbal abuse consisted of denigration as well as repeated threats to kill her and her mother. She believed that he would carry out his threats. She also alleged that he slashed her mother's car tires and this reinforced her fear that he would kill her mother if she told her about the abuse. She stayed in the relationship because of threats and fear he would harm her mother.
d)Of greater concern and distress to the mother was the father's alleged abuse of [X]:
The mother described extensive and repeated physical abuse of ([X]) and said that she was also frightened to tell others, not even a doctor because (the father) repeatedly threatened to kill her if she told anyone. She claimed that [X] had bruises from being kicked and hit by (the father). She said he would kick the baby with his shoes and he even kicked her in the head with his shoe when she was in the way. She gave as an example of [X] being hit by him because she only wanted to be fed by her mother and would not take food from him. (The mother) said that he tried to smother [X] with a pillow when she persisted in crying. He also bit [X]'s lip causing it to become very sore and swollen and resulting in the baby not being able to eat. The most disturbing example she gave was when (the father) placed "his lips on the child's lips", covering her mouth with his mouth which prevented the child from breathing. She alleged that on two occasions [X] ceased breathing altogether and became limp and needed to be given mouth to mouth resuscitation. … She said he threatened to kill her and the baby if she told anyone about these incidents. According to (mother) she used to plead with him "on my knees and say please don't touch her. Bash me instead."
e)Ms B wrote that she carefully questioned the mother to make sure that there was no misunderstanding about the events described in the previous paragraph. According to Ms B, there was no misunderstanding. The mother clearly described [X] "ceasing breathing, dropping her arms and becoming limp" after the father covered her mouth with his mouth.
f)The mother told Ms B she was uncertain about the paternity of [Y], and confirmed that she had had a sexual relationship with another man at the time of the baby's conception.
g)The mother appeared to accept that she has hepatitis C, but alleged that she contracted it from the father.
Ms B described [X] as well presented, and seemingly a healthy and good-natured child. [X] interacted with the mother (and the mother's mother) easily and with obvious pleasure. On the other hand, and although [X] recognised the father, she "did not indicate any pleasure in seeing him".
Ms B continued her description of the father's interaction with [X] as follows:
(The father) demonstrated some parenting skills in keeping the child amused and engaged and eventually even coaxed a smile from her. In my presence, he was watchful and careful with her and continued to be playful. (The father) held her in his arms for a long period of time. He did not respond to signals from the child that she wanted her mother or that she was unhappy. He attributed her compliance when with him, although periodically crying, as indicating her happiness in his care.
[X] played a little when she was eventually placed on the floor. She was inhibited and uncertain and did not explore her surroundings. She remained insecure.
Ms B's observations indicated to her that [X] was solely attached to the mother, and that the attachment was a healthy and secure one. Although [X] recognised the father, he was "not a figure of reassurance to her".
In Ms B's opinion, [X]'s insecurity in the father's presence contraindicated his claim to the effect that he was [X] primary carer during the parties' relationship (even when the length of the period of separation between the father and [X] was taken into account). Indeed, Ms B concluded that "the observations of the child's reactions indicated, at the very least, that she could not have been in the primary care of (the father) during the parties' relationship".
Under the heading "Conclusion", Ms B wrote:
The allegations of physical abuse of ([X]) and the circumstances described by (the mother) are particularly disturbing. She described direct and intentional violence by (the father) by hitting, kicking and attempted smothering of the child with a pillow and was clear that on other occasions as a result of his actions [X] stopped breathing and had to be revived. (The mother) seemed genuine in her distress when she spoke of the alleged abuse of her and the child and especially when pleading with the father not to hurt their child. (Emphasis added.)
Similarly, [Y]'s relationship with the father is a developing one. I find that there is no reason why the father cannot have a close and loving relationship with [Y], and with [X] as well. Again, I rely on the encouraging signs which are apparent from the [omitted] Contact Centre reports. To the extent that it is relevant, Ms B had little to say about the father's relationship with [Y] and the reality is that she had minimal opportunity to observe any interaction between them.
Clearly, the only way that the girls will be able to have a meaningful relationship with their father in the foreseeable future is if they continue to have contact with him.
Protection from harm
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is a primary consideration, and it is the primary base upon which the mother's case has been constructed. She argues that there is an unacceptable risk of harm to the children if the father spends time with them, and particularly if he spends time with them on an unsupervised basis.
As indicated above, I am not satisfied that the father has harmed either of the children at any time. Nor am I satisfied that the father has been violent to the mother (beyond the behaviour admitted by him).
I accept that there are always risks to children as part of the ordinary and uncontroversial realities of parenting, but I find that the risks to the children while in the care of the father are not unacceptable.
I do not minimise the seriousness of abuse or family violence for one moment. I have given careful consideration to the mother's allegations, and to the concerns expressed by Ms B and by Mr Grigg on behalf of the ICL (and, indeed, to Mr Henwood’s submissions). They all urged the Court to accept that the children are likely to be at risk in the father's care. In my opinion, however, the totality of the evidence does not support their approach. Relevantly, they appear to have given far greater weight to the mother's evidence than I am prepared to give to it. Similarly, they appear to have overlooked the absence of independent evidence corroborating the mother's allegations. I accept that there are aspects of the father's life and history about which he has been less than truthful, but I am satisfied that he has been truthful about those matters which pertain to the Court's obligation to protect the children from harm and from being subjected to, or exposed to abuse or family violence.
If the father had in fact harmed [X] and/or the mother, then it would clearly be of importance for the Court to be satisfied that the father has shown an ability to recognise the wrong he has done, and to be satisfied that he has taken or is taking steps to correct the deficiency in his character which led to the perpetration of the family violence. I have found, however, that the father was not the perpetrator of family violence as alleged by the mother. It follows that there is no need for him to "recognise the wrong he has done" or to accept responsibility for things he did not do. While the father may have deficiencies in his character, those deficiencies do not reveal a propensity to be the perpetrator of family violence.
I accept, without question, that violence to a partner who is a parent of the perpetrator's children involves a significant failure in parenting. It amounts to a failure to protect the children's carer and a failure to protect the children emotionally. In this case, however, I have found that the father was not violent to the mother (beyond the behaviour to which he admitted).
Given the findings that I have made to the effect that the father has not abused [X], I find that there is no unacceptable risk of such abuse occurring. It is possible, of course, that a court could find that a parent has not abused a child but that there still exists a risk that the child might be abused by the parent. In the present case, the evidence does not persuade me that the father will or might abuse or neglect or otherwise harm either of the girls. Although he may be somewhat idiosyncratic, I find that he is a loving and caring parent (even if he is not a generous or particularly thoughtful one).
I note that the father’s uncontradicted evidence was to the effect that he had unsupervised contact with [X] for a period of three months. The evidence reveals that the father has not harmed [X] in any way since the parties separated, and I have accepted the father's evidence to the effect that he did not harm her in any way prior to that incident either.
Having found that there is no unacceptable risk, I need to consider whether the mother has a genuinely held belief that such a risk exists and whether that genuinely held belief will have a significant impact on her capacity as the children's primary caregiver. If the mother did have such a genuinely held belief, it could impinge on the best interest of the children.
In all the circumstances, I find that the mother does not have a genuinely held belief that the children are at serious risk in the father's care. I accept that the mother probably believes that the father's parenting skills are inferior, but there is no evidence before me that the mother genuinely, but mistakenly, believes that the father abused or was physically violent to [X].
Put another way, neither Mr Henwood nor Mr Grigg suggested that the mother has some form of delusional fixation to the effect that the father has physically abused [X] (whether such a fixation is sourced in her intense dislike of the father or elsewhere). The mother's case went no further than arguing that she had told the truth about the father's behaviour and that he had not had. As discussed elsewhere, I am not persuaded that the mother's evidence in relation to family violence (and particularly her evidence in relation to family violence directed to [X]) should be accepted as being truthful. I accept that the mother is angry with the father and that she wishes to hurt and upset him. I also accept that she probably does not trust him to properly care for the children. I do not accept, however, the mother is unaware that her allegations of family violence are untrue.
There is simply no evidence before me that the mother will not be able to "cope" in any relevant sense if the father is permitted to have contact with their children. That she does not want him to have contact with them, and would prefer that he simply "disappear" (as it were) from her and the children's lives, is a different matter. Indeed, the mother said that she would abide by any court orders relating to contact and I accept that she is likely to do so.
Children's views
The children's views are not a relevant consideration in this case, and none of the parties suggested that they are.
Nature of relationship
I have already reported that the children have a close and loving relationship with the mother, to whom they are primarily attached that it was their primary caregiver.
The children's relationship with the father is far more tenuous. The evidence, particularly the evidence contained in the [omitted] Contact Centre reports, reveals that the children's relationship with their father is improving and developing. It should be given the opportunity to develop further.
The nature of the children's relationship with others, such as grandparents, was not explored at trial.
Facilitation and encouragement of relationship between child and parent
I find that the father is willing and able to facilitate, and encourage, a close and continuing relationship between the children and the mother. He accepts that she is a good mother (although he made criticisms of her, as a parent and as a person, to Ms B in her first interview with him). I accept that the father has been upset and frustrated by the mother's reluctance to allow him to spend unsupervised time with his children and, I would add, by her assertion that he was not [Y]'s father. No doubt he was also upset and frustrated by the mother’s allegations to the effect that he had been the perpetrator of very serious family violence against her and against his daughter.
I find that the mother was unwilling to facilitate and encourage a close and continuing relationship between the children and the father, and that she actively impeded that relationship by raising and maintaining allegations to the effect that the father poses an unacceptable risk of abuse to the children. The mother said in evidence, however, that she will abide by court orders, and I accept her evidence in that regard. It follows that she has the capacity to facilitate and encourage an appropriate relationship between the children and the father.
Effect of changes in child's circumstances
The father has not sought orders to the effect that the children live with him. He seeks only such contact as the court considers appropriate. It follows that there is no suggestion that the children will be separated from the mother to the extent that such separation is likely to have negative consequences for them. The girls are very young and [X] has a developmental difficulty that is yet to be properly diagnosed or explained. In such circumstances, the time the children spend with father should increase slowly and with caution.
Practical difficulties and expense associated with contact
There are considerable practical difficulties and expenses associated with the children spending time with the father on a supervised basis. I have concluded, however, is that the children are not at risk in the father's care and contact can, therefore, be on an unsupervised basis.
If contact is to be unsupervised, then there is no evidence before me of any practical difficulties or expense associated with such contact.
Capacity to provide for the child's needs
I am satisfied that the mother has the capacity to provide for the children's needs, including their emotional and intellectual needs.
I doubt that the father has the capacity to provide for the children's intellectual needs, but I accept that he has the capacity to provide for their emotional needs. I have found that he is a loving and caring father, although he is certainly not a candidate for "Father of the Year" (to employ an expression used frequently in the Family Law Courts). The father has much to learn as a parent, and he has not spent a great deal of time with his children. Indeed, he has spent minimal time with [Y] since he birth. I am satisfied, however, that his parenting skills will improve and I propose to make orders that will assist him in that area.
Maturity, lifestyle and background of the child and the parties
The mother's family is Turkish and the father's family is Lebanese. Both of them have had fallings out with family members. The mother said that she has never seen her "real" father, and there has been significant friction between her and her mother in the past. The father changed his name completely, seemingly to distance himself from his family. Two of his brothers have obtained intervention orders against him, although the father maintains that his relationship with his brothers has now been repaired.
Both parties have been on a methadone program, and the father (and perhaps the mother) seems able to complete the program. They have both had involvement with illegal drugs in the past, and both have criminal records.
I find that both parties are immature and that both have struggled to accept adult responsibilities, including responsibilities as parents of very young children. I have decided that the parties should be given the opportunity to cooperate as the parents of these children and to endeavour to make a success of their lives independently from each other. I accept that their relationship was a strange and dysfunctional one. Only time will tell whether their responsibilities as parents will serve to assist them to mature and function more appropriately as adult members of the community.
Attitude to the child and to responsibilities of parenthood
I have already dealt with this subject elsewhere in these Reasons. Save in relation to the issue of contact, I find that the mother has begun to adopt a more mature attitude to the responsibilities of parenthood.
The father has not yet begun to adopt a more mature attitude to the responsibilities of parenthood, one of which is the responsibility to financially support one's children. Now that the father will be able to spend unsupervised time with the children, it is to be hoped that he will take a greater interest in medical issues and, in due course, educational matters.
The mother rightly criticised the father for not providing child support and for not giving the children Christmas and birthday cards or presents. The father accepted this criticism.
So far the father has had something of a "free ride", where the responsibilities and duties of parenthood are concerned. I take into account, however, that the parties separated when [X] was less than 12 months old, and well before [Y] was born. Since that time, the father has been almost constantly engaged in endeavouring to secure contact with the children.
This is certainly not a factor that favours the father's case. I am satisfied, however, that the father's attitude is likely to improve as he begins to spend regular, unsupervised time with his children, and as these proceedings (or, at least, this stage of these proceedings) is brought to a close.
Family violence
I have dealt with the issue of family violence elsewhere in these Reasons.
Orders least likely to lead to the institution of further proceedings
Somewhat perversely, the orders least likely to lead to the institution of further proceedings in this matter are the orders sought by the mother and the ICL. That is so because the father would then be prevented from spending time with the children.
I accept that it is important to avoid the institution of further proceedings if at all possible. At the end of the day, however, the best interests of the children comprise the paramount consideration for the Court. I am satisfied that it is in the best interests of the children to be permitted to have a meaningful relationship with the father and to be able to spend and enjoy time with him. Given the history of the matter, however, and the allegations that the mother has made against the father (which allegations I have found to be largely untrue), I am of the opinion that the children's time with their father will have to be monitored by the Court for a further period of time. Hopefully, both parties will accept the ruling of the Court and there will be no need for further proceedings.
Other relevant facts or circumstances, including reference to section 60CC(4) and (4A)
There appear to be no other relevant facts or circumstances beyond those discussed above, and none of the parties suggested that there are.
Section 60CC(4) and (4A) provide as follows:
(4) … the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The evidence reveals that the parties never lived together in a conventional sense. I accept, however, that they spent a great deal of time with each other prior to their "separation" in November 2009, when [X] was less than 12 months old.
Although the evidence is less than clear in relation to the subject, it is likely that the father did not take the opportunity to participate fully in making decisions about major long-term issues relating to [X] prior to separation, although I find that he spent time with [X]. . It is likely that he left the majority of these decisions to the mother. Similarly, it is likely that, prior to November 2009, the mother was prepared to facilitate the father participating in making decisions about [X]'s long term issues, but he was not overly interested in doing so.
The comments appearing in the previous paragraph are not intended to be a criticism of either party. The reality is that [X] was a baby at that stage and that the parties did not live together in the traditional sense. I have found that the father assisted the mother with caring for [X], but it is likely that she was the primary caregiver. There is no or almost no evidence about the making of decisions in relation to long-term issues for [X], and hence the comments that I have made are little more than inferences from the totality of the evidence before me.
In relation to the maintenance of [X] (in a financial sense), I find that the father is likely to have assisted with the maintenance of [X] to some extent prior to separation. I find, however, that he clearly failed to maintain her, and certainly failed to maintain her adequately, after separation.
Since November 2009, the father has had little opportunity to participate in decisions about major long-term issues relating to either [X] or [Y]. He has made efforts to spend time with [X] (and later [X] and [Y]), and his involvement in the current proceedings attests to those efforts. Still, there can be no doubt that the father could have and should have been more cooperative with the pre-trial directions and requirements.
Since November 2009, the mother has opposed the father having contact with [X] (and later [X] and [Y]) and has certainly not sought to involve him in making decisions about major long-term issues relating to the girls. Indeed, the mother initially denied that the father was [Y]'s parent. Further, I find that she effectively "dragged her feet" in relation to the parentage testing procedures (as is apparent from, among other things, the contents of the [omitted] Contact Centre reports). Although the mother has complied with orders in relation to contact (albeit somewhat reluctantly), her preferred position is that the father should have no contact with either of his children.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that the proposals put forward by the mother and the ICL are unlikely to be in the children's best interests. I find that the father has the potential to have a meaningful and loving relationship with the girls and that they are likely to benefit from such a relationship. I am satisfied that the children will not be subjected to abuse or family violence, or other forms of harm, while they spend time with the father and that he can assist in ensuring that they provide adequate and proper parenting to help them achieve their full potential. He can be and should be an important part of their lives. He does not seek to be their primary caregiver, and that is just as well – because, in my opinion, he is incapable of performing such a role at this stage of his life. That is not to say that he cannot care for the children for relatively short periods of time, but caution is required before those relatively short periods of time are extended.
Allowing the father to spend time with and care for his children will assist in ensuring that he will begin to fulfil his duties and meet his responsibilities concerning the care, welfare and development of the girls. It will also ensure that the mother recognises that the girls are entitled to have the benefit of both of their parents having a meaningful involvement in their lives. Further, allowing the father to spend time with [X] and [Y] will assist in protecting them from any psychological or emotional harm that could result from being exposed to the mother's relentlessly negative attitudes towards the father.
In this case, it is also important to record that section 60B(2) recognises that, as a matter of principle, [X] and [Y] have the right to know and be cared for by their father as well as their mother, and to spend time on a regular basis with their father. The "right" of [X] and [Y] in this regard is, of course, subject to their best interests. In other words, if contact with their father were to be considered contrary to their best interests, then the Court should ensure that such contact does not take place. In the present case, however, I have indicated that I am not persuaded that contact with the father is contrary to the girls' best interests.
Parental responsibility
Although I have discussed the subject of parental responsibility under the heading of the "Parenting Orders – The Law" above, I refer (for the sake of convenience) to the following helpful summary from the judgment of Bennett J in Exelmans & Sully (2011) FamCA 3:[51]
[51] footnotes have been deleted
227. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In making parenting orders in relation to children, (the Court is, subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility. Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
228. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’ and to ‘make a genuine effort to come to a joint decision about that issue’. These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
229. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
· If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family;
· If, at an interim hearing, the court considers it is inappropriate for the presumption to apply; or
· Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Clearly, the second alternative does not apply.
Although I have found that the father did not abuse [X] or engage in family violence towards her, and although I have found that the mother has exaggerated the family violence to which she was subjected by the father (and have indicated that I prefer the father's version of the evidence in this regard), there can be no doubt that the relationship between the mother and the father was a volatile and dysfunctional one and that there were physical altercations between them.
Whether or not the presumption of equal shared parental responsibility has been formally rebutted, I find that it would not be in the best interests of the children for the mother and the father to have equal shared parental responsibility for them. There can be no doubt that they are unable to communicate about the types of matters that the concept of equal shared parental responsibility requires them to consult and reach agreement about, and the effect of the orders that I propose to make is that the children will be spending limited time with the father for at least the next 12 months.
I am conscious that the mother sought an order for equal shared parental responsibility (in relation to the child [X] only) in her response filed on 9 April 2010, but the contrasting nature of the father's comments regarding the mother in his two interviews with Ms B and the vehemence of the mother's accusations against the father clearly suggest that such an order is contraindicated.
Further, I am concerned that the hostility that the mother feels towards the father could lead to delays in the making of decisions, and perhaps significant decisions, regarding the welfare of the children. Indeed, the mother's single-mindedness in denigrating the father and her obvious lack of respect for him could lead to the decision-making process being effectively paralysed.
In all the circumstances, therefore, and as indicated above, I am not satisfied that is in the best interests of the children to make an order for equal shared parental responsibility. I am prepared, however, to make an order that will require the mother to consult with the father about major long term issues, but leaves the final say to her.
Orders
I propose to make final orders to the following effect:
a)The mother have sole parental responsibility for the children.
b)The children live with the mother.
c)Notwithstanding (a) above, in exercising sole parental responsibility in relation to major long-term issues, the mother must:
i)consult the father in relation to any decision to be made about the relevant issue;
ii)make a genuine effort to come to a joint decision about that issue; and
iii)in the event that the parties are unable to come to a joint decision about that issue, notify the father of any decision relating to the issue within seven days of making such decision.
d)Each party must:
i)advise the other party immediately in the event that either child suffers any serious illness or injury; and
ii)authorise any medical professional upon whom either child may attend from time to time, to communicate with the other party regarding the child's condition and/or requirements.
e)The mother must authorise all schools/kindergarten is which the children may attend from time to time to:
i)provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs in relation to the children;
ii)permit the father to attend all school functions (including school concerts or parent/teacher interviews) to which parents are ordinarily invited.
f)Nothing in the within orders shall prevent either the father or the mother from having either child treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:
i)the name and contact details of the medical professional administering the treatment;
ii)the medical or other complaint for which the child was taken to the medical professional;
iii)any treatment and/or medication prescribed for or provided to the child; and
iv)the reasons for the prescription for or provision of such medication and/or treatment.
I propose to make other orders to the following effect:
a)The proceedings be adjourned for a period of approximately 12 months.
b)The father spend time and communicate with the children on an unsupervised basis as follows:
i)for a period of three months commencing from the date of these orders: twice per week, for a period of two hours on each occasion;
ii)thereafter, for a period of three months: twice per week, for a period of two hours on one occasion and three hours on the other occasion;
iii)thereafter, for a period of three months: twice per week, for a period of two hours on one occasion and four hours on the other occasion; and
iv)thereafter, until the matter returns for hearing: twice per week, for a period of two hours on one occasion and five hours on the other occasion.
c)The contact periods referred to above must include time on the children's birthdays and on occasions that are important to the father from a family or religious point of view.
d)Until further order, contact changeover on each occasion is to take place at a Contact Centre or, if that cannot be arranged, at a police station or other public and secure venue.
e)The appointment of the ICL is to be extended until the completion of the proceedings or otherwise until further order.
f)Usual non-denigration orders (until further order).
g)Both parties are to attend a suitable "parenting orders program".
h)Usual order (until further order) regarding restraint on using drugs (father only).
i)Usual order (until further order) for supervised drug screens (father only).
j)In the event of the father failing or refusing to undertake a supervised drug screen without a valid excuse having been provided to the ICL, the ICL must file an immediate application in a case seeking orders for the suspension of the father's contact with the children.
k)The ICL must provide a copy of these orders to the Department of Human Services within 14 days.
I shall now hear all parties as to the precise orders necessary to give effect to these Reasons.
I certify that the preceding two-hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 9 March 2012
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
para.36
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