Dunne and Herron
[2007] FMCAfam 723
•18 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNNE & HERRON | [2007] FMCAfam 723 |
| FAMILY LAW – Child aged 6 – retained in Townsville by father after a visit – whether the child should be returned to the mother in [N], Northern Territory on an interim basis – assessment of risk of child being exposed to domestic violence in the mother’s home. |
| Family Law Act 1975 – ss.60CC, 60I, 61DA |
| C and S (unreported) Full Court of the Family Court Ellis, Lindermayer, Warnick JJ delivered 15 May 1998 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS DUNNE |
| Respondent: | MR HERRON |
| File number: | DNC 503 of 2007 |
| Judgment of: | Terry FM |
| Hearing date: | 12 September 2007 |
| Date of last submission: | 12 September 2007 |
| Delivered at: | Darwin |
| Delivered on: | 18 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Phoo |
| Solicitors for the Applicant: | North Australia Aboriginal Justice Agency |
| Counsel for the Respondent: | Mr Lynham |
| Solicitors for the Respondent: | McDonald & Leong |
ORDERS
That within 7 days of today’s date the father return the child L born in 2001 to the mother in [N].
That until further order the child live with the mother.
That until further order the child spend time with the father as follows:
(a)For the Christmas school holidays from 27 December 2007 until 3 days before the child is due to commence school;
(b)For the whole of the Northern Territory April school holidays;
(c)Such other times as may be agreed between the parties.
That the parent with whom the child is not living shall have telephone communication with the child as follows:
(a)Each Sunday and Wednesday between 6.00pm and 6.30pm;
(b)On the child’s birthday;
(c)On the Christmas Day;
(d)At such other times as may be agreed between the parties.
That the parents have equal shared parental responsibility for the child.
That the mother ensure that the child attend school unless the child is ill or required to attend a medical or other professional appointment which prevents her school attendance.
That each party is restrained and an injunction is granted restraining them from physically disciplining the child.
That the mother shall take all necessary steps to ensure that Mr B does not physically discipline the child.
That until further order the father shall pay the costs of the child’s air travel between [N] and Townsville.
That the matter be listed for further directions on 12 February 2008 at 9.30am with a view to the matter being given a final hearing date if required.
That pursuant to section 62G(2) of the Family Law Act 1975 a family consultant or suitably qualified person provide to the court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child L born in 2001 with such report to be released to the parties by 31 January 2008.
IT IS NOTED that publication of this judgment under the pseudonym Dunne & Herron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
DNC 503 of 2007
| MS DUNNE |
Applicant
And
| MR HERRON |
Respondent
REASONS FOR JUDGMENT
Introduction
L’s parents had a short on-off relationship between 2000 and 2001. L is now 6 years old, having been born in 2001.
To their great credit, L’s parents have until recently been able to agree on arrangements for her care. L has lived primarily with her mother and has spent regular time with her father.
On 6 August 2007, the mother who lives in [N], Northern Territory sent L to Townsville where the father lives so that L could attend the father’s wedding. The father was to return L on 14 August 2007, but he did not do so. As a result the mother commenced these proceedings on 30 August 2007.
The mother wants L returned to her immediately. The father says that the child should remain with him in Townsville until an assessment is carried out of the mother’s home in [N]. He says that there is domestic violence in the mother’s household, that the mother’s new partner has physically disciplined L, that L is missing too much school and that L has a troubled relationship with her mother and does not want to return to her mother.
The mother filed an application and affidavit on 30 August 2007 and a further affidavit on 11 September 2007. The father filed a response and affidavit on 6 September 2007.
I am uncertain about whether any court orders have previously been made about L. The father says that orders were made in 2001 following a legal aid conference but does not provide a copy. If there are no orders then section 60I(7) of the Family Law Act 1975 applies to these proceedings and has not been complied with. The parties have not attended any family dispute resolution.
The mother characterises these proceedings as urgent, and says that she is willing to take part in family dispute resolution but only once L is returned. The father is willing to take part in family dispute resolution but will not return L.
I can see no point in forcing the parties to attend family dispute resolution prior to hearing this interim application. The mother is upset with and no doubt distrustful of the father as a result of his failure to return L as he had agreed to do, and this is a poor background against which to attempt family dispute resolution.
Each party is seeking final orders that L live with them, although the father’s counsel said that if the father could be satisfied about the conditions in the mother’s home he would not press for an order that L live with him. There is no quick and easy way of obtaining objective evidence about conditions in the mother’s home, particularly as the mother lives in a remote area. The father did not file a Notice of Child Abuse and Family Violence and there is therefore no likelihood that Family and Children’s Services will conduct any investigation. A Family Report would assist, but because of where the parties live, I will need to allow four months for a Family Report to be prepared.
If this matter proceeds to a final hearing, the mother and father, their partners and other relevant witnesses will give evidence, a family report will be available, and I will be in a position to make findings of fact. I am required however to make orders about where L is to live pending the preparation of a Family Report and the conduct of a final hearing. I must do this in circumstances where I only have untested affidavit material before me, and where I cannot easily resolve disputes of fact.
Not everything is in dispute. I know that, for example, the parties separated when L was a few months old, and the mother has always been L’s primary carer. The mother is 29, is engaged in home duties, and lives in [N], a town on the east coast of the Northern Territory. The mother has lived there since 2004, and her household usually consists of L, the mother’s partner Mr B, and their four young children aged 4, 3, 2 and 10 months.
The mother’s parents and her brother also live in [N].
The mother has lived in [N] since August 2004, and she moved there from Townsville with the father’s consent.
The mother has had issues with Mr B committing an act or acts of domestic violence, and currently has a non-violence restraining order against Mr B, although they continue to live together. This non-violence restraining order was taken out in February 2007.
L has been attending [N] Primary School, although her attendance record this year is not perfect.
The father is 27 and lives in Townsville. He lives with his wife, Ms C. Although the mother has always been L’s primary carer, the father has always been an involved parent who has seen his daughter regularly.
Until 2004 and while the mother lived in Townsville, the father saw L every alternate weekend. He agreed to the mother moving to [N] in August 2004, and for a few months after the mother moved to [N] the father had L in his care month about.
During 2005 the father lived in South East Queensland and saw L less frequently because of the travel involved. However from December 2005 onwards he saw L every school holidays for the whole of the holidays.
The father agreed to the mother going to [N] because she told him that she wanted to get away from her relationship with Mr B. He says that it was because she was experiencing domestic violence, the mother does not quite admit this. The father however became aware only two months after the mother moved that Mr B had joined her in [N]. The father has been aware for past three years that the mother has continued to live with Mr B.
Attached to the father’s affidavit is a report from a psychologist Ms M, to whom the father took L during her most recent visit to Townsville. The difficulty with this report is that I have no means of assessing how reliable it is and how much L’s views have been influenced by the fact that she has been staying with her father on holidays and in a household in which she is the only child. This household likely has a greater disposable income than the mother’s household, and appears to be able to supply L with things such as a pool and her own television.
There are significant disputed issues, including:
a)The nature of L’s relationship with the mother – whether it is troubled as the father asserts and whether L is simply experiencing a difference between her father as a “holiday” parent and her mother is the parent required to impose boundaries and discipline during school terms;
b)The nature and extent of domestic violence in the mother’s household and in particular whether it is current or has been overcome;
c)Whether L’s school absences are of concern or are explicable;
d)Whether the father owes substantial arrears of child support, and the impact on the mother of non-payment of child support;
e)Whether the father’s application has been motivated in part by a long held desire to have L live with him, rather than simply because of strong concern about the present circumstances.
Against this background of agreed and disputed facts, I must make a decision about interim arrangements for L.
Section 60CC (2) and (3)
Any orders I make must be in L’s best interests. Section 60CC(2) and (3) of the Family Law Act 1975 sets out the factors I must take into account in order to determine what orders would be in L’s best interests. In the interim proceedings there is often little uncontested evidence to enable more than a limited consideration of these matters to take place.[1]
[1] See Goode & Goode [2006] FamCA 1346
There is no doubt that L will benefit from having a meaningful relationship with both of her parents.
I must consider the need to protect L from physical and psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
The evidence does not support a finding that L is being subjected to abuse in her mother’s household. On the current evidence I am unable to determine whether L is currently being exposed to family violence in her mother’s household.
The psychologist, Ms M, reports that L wants to stay in Townsville. I cannot in these interim proceedings make a finding about what weight should be placed on these views.
There is no dispute that L has a good relationship with her father.
Although Ms M reports that L has made complaints about her mother, these complaints were made in the context of the child being taken to a psychologist during a holiday visit to her father. The mother is the person who cares for L during term times when there is a greater need to impose rules and boundaries and the fact that L describes her mother as “mean” needs to be viewed in context. I must also treat with caution the evidence available about the child’s relationship with Mr B. There have been no observations of the child with her mother and step-father. I cannot make any findings about the nature of the relationship between L and the mother and Mr B.
The mother says that L is close to her younger siblings and I expect that these are normal sibling relationships.
The mother has always shown a willingness to encourage and facilitate the child’s relationship with the father. L has spent extensive time with her father since separation, and the mother has, until 2007, contributed to the airfares. Similarly the father has until recently encouraged and facilitated the child’s relationship with her mother.
I cannot make findings on the limited evidence available about the effect on L of a change in her living arrangements.
Each parent until recently has accepted the capacity of the other to meet L’s needs while L is in their care.
The father while relying on the psychologists report in which L describes her mother as “mean”, proposes that L spend all school holidays with the mother as long as Mr B is not there. This suggests that he accepts that the mother has the capacity to care for L on a day to day basis.
The father is concerned about aspects of the mother’s parenting of L. He is concerned about L being exposed to domestic violence in the mother’s household and by implication, is critical of the mother for not protecting L from this. I cannot make any finding about whether and to what extent the mother has failed in this respect.
The father is critical of the mother for L’s school absences, although I note that he had no difficulty with L missing seven days school to attend his wedding. The mother provides an explanation for the school absences, and the letter from L’s teacher raises no concerns about L’s progress at school. I cannot resolve in these interim proceedings the issue of whether L’s school absences are a cause for concern.
The mother says that the father has demonstrated a poor attitude to the duties and responsibilities of parenthood by failing to pay child support and that he currently owes her $8,000.00. It is the mother’s case that this has caused her financial hardship and has impacted on how she is able to provide for L. I do not know what the father says about this and can make no finding about it in these interim proceedings.
I am required to have regard to any family violence involving the child or member of the child’s family. The mother concedes that she currently has a non-violence order in place against her partner, Mr B. The mother has not provided any information about the nature and extent of any past violence and says that there has been no violence since February 2007.
The psychologist Ms M reports L as saying that Mr B has hit her mother and that Mr B and the mother fight but I am unable to be certain whether L is referring to recent events or events which are now past.
Section 61DA
Section 61DA requires me to apply a presumption of equal shared parental responsibility unless there are reasonable grounds to find that a parent of a child, or a person who lives with a parent of a child, has engaged in abuse of the children or family violence.
The domestic violence order the mother has taken out against her partner, Mr B, raises a concern that in the past at least, the mother’s partner has engaged in family violence. I am not persuaded however that this is a good reason to make a sole parental responsibility order in favour of the father, and I intend to order that the parents have equal shared parental responsibility.
Conclusion
Because of the distance the parents live apart, and because L has now attained school age, it is not possible for me to make an order that L spend equal time or substantial and significant time with each of her parents. A choice must be made about where L is to live until a Family Report can be prepared.
Until a month ago L lived primarily with her mother. Her father has unilaterally altered this arrangement by failing to return L to [N] as he had agreed to do.
The father says that he had concerns about L’s living arrangements after the June/July school holiday visit, but he chose not to raise those issues with the mother. Rather he let the situation continue until L was again in his care and he then refused to return her.
The Full Court of the Family Court in the case of C and S[2], said as follows:
“In my view it is clear that the interests of any child or children, including the children here , are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.”
[2] C & S (unreported) Full Court of the Family Court Ellis, Lindermayer, Warnick JJ delivered 15 May 1998
The issues raised by the father about L’s school attendance, her telling him that she does not wish to return to her mother’s household or her telling the psychologist that her mother is mean to her, would not be sufficient to persuade me that L should not return to her mother on an interim basis.
I must however carefully consider the issue of whether returning L will be to place her at risk of exposure to family violence. If there is an unacceptable risk of this, it would require me to err on the side of caution and leave L where she is, despite the father having acted unilaterally in retaining her.
This is a very difficult issue because the father’s concerns are not completely without foundation. The mother has a non-violence restraining violence order in place against her partner Mr B. It has been in place since February 2007.
The mother does not provide any detail of the type of domestic violence which has occurred in her household. She has not been frank about her situation, and did not originally file a copy of the domestic violence order with her application, as she ought to have done.
On the other hand, the father, on his own evidence, has been aware of domestic violence as a possible issue in the mother’s household since 2001. He has been aware since 2004 that the mother and Mr B were living together in [N]. He has been content to allow L to remain with her mother. Given that he is a concerned and involved father who has spent extensive holiday time with his daughter, it is not unreasonable to assume that until recently nothing has been said to him or observed by him, which has led him to believe that his daughter was at risk in the mother’s household.
The father returned L to the mother after the June/July holidays and did not raise any concerns with the mother at that time. He did not contact the mother’s parents, as he had done in the past, to express any concerns and try to obtain information about the situation.
L said to the psychologist that “Mr B hit her mother” but I have no means of assessing whether this has happened recently. The mother says that there have been no incidents in her household since February 2007.
I am not able to assess in these interim proceedings, the extent, if any, to which the recent developments in relation to L have arisen because she perceives the benefits of being the only child in her father’s household with a greater disposable income, and the intent to which they have arisen because of real current difficulties in the mother’s household.
In these circumstances, where I cannot make a finding about whether family violence has occurred in the mother’s household, at least recently, and where I cannot make findings about the nature and extent of any violence which has occurred in the past, I must make some assessment of the risk to L of being exposed to family violence if she returns to the mother’s home.
The father’s evidence does not disclose that L is suffering from any behavioral difficulties or difficulties interacting with her peers. The letter from L’s teacher at [N] Primary School does not present a picture of a troubled child, but refers to her as a bright and bubbly child who is friendly, helpful, interacts well with her peers and loves school.
On balance although I have concerns about the domestic violence issue, I am not satisfied that there is an unacceptable risk of harm to L if she returns to her mother’s care and I propose to order that in the interim, L return to her mother’s care. I will also order that a Family Report be prepared.
I will not immediately list the matter for final hearing, given the father’s statement that if he is satisfied with L’s situation in the mother’s household he will not press for a change of residence. Rather, I will list the matter for directions after the Family Report has been prepared.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: C White
Date: 18 September 2007
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