Eddy and Beaumont
[2017] FCCA 215
•10 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDDY & BEAUMONT | [2017] FCCA 215 |
| Catchwords: FAMILY LAW – Parenting – children living with father since 2011 – siblings separated since August 2016 when oldest child commenced living with mother – allegation that step-mother choked one of the children – allegation that step-mother is physically abusive – burden of proof and findings of fact – whether unacceptable risk of harm to children if no findings of fact could be made – best interests of children – children to live with father – children to spend time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: A & A (1998) FLC 92-800 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 Star & Duggan [2009] FamCAFC 115 |
| Applicant: | MS EDDY |
| Respondent: | MR BEAUMONT |
| File Number: | PAC 1709 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 17, 18, 19 October 2016 |
| Date of Last Submission: | 3 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Barber & Massey |
| Counsel for the Respondent: | Mr Cohen |
| Solicitors for the Respondent: | Gonzalez & Co |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Rowley & Associates |
ORDERS
That the father have sole parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
That the children live with the father.
That the children spend time with the mother as follows:
(a)During the school term and commencing on 16 February 2017, from after school on Thursday to before school on Monday each alternate week; and
(b)During each gazetted school holiday period in years ending with an even number for the first half of each such period from the last day of school to midday on the middle day of the school holiday period; and in years ending with an odd number for the second half of each such period from midday on the middle day of the school holiday period to the commencement of school in the new school term.
That notwithstanding any other order, the children live with the father each year on Christmas Day from 10am to 6pm and on each of the children’s birthdays from 3pm to 8pm.
That for the purposes of orders (3) and (4) above, if changeover does not occur at the children’s respective schools, then the mother shall pick the children up from the father’s residence at the commencement of the children’s time with the mother, and the father shall pick the children up from the mother’s residence at the conclusion of the children’s time with the mother.
That pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Counselling and Mediation Unifam (omitted) on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Post Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
That pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Care Unifam (omitted) on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Keeping Contact program offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
That each of the parties is restrained from using physical discipline on the children or permitting or allowing any third party to do so.
That each of the parties is restrained from denigrating the other or any member of the other party’s household or permitting or allowing any third party do so within the presence or hearing of the children.
That the father authorise any school which the children may attend to provide information to the mother about the children’s progress at school, including copies of school reports, photographs, newsletters and other general information about the children’s attendance at school.
That the father use his best endeavours to consult with the mother before making any major long term decisions in relation to the children’s education or health.
That all outstanding issues are otherwise removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Eddy & Beaumont is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1709 of 2014
| MS EDDY |
Applicant
And
| MR BEAUMONT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in respect of the two children of the parties:
a)X born on (omitted) 2004; and
b)Y born on (omitted) 2006.
The children have been living apart from each other since 1 August 2016, when X commenced living with the mother and Y remained living with the father. Prior to this date, both children had been living with the father and spending no time with the mother for at least the last twelve months, although this has not always been the case.
There are allegations of physical and unacceptable risk of harm to the children in the father’s household, which are central to the determination of what orders are in the children’s best interest. Also of significant importance are the parties’ capacities to foster and encourage relationships between the children and the other parent, as well as the attitudes of each of the parties to the responsibilities of parenthood.
The Final Hearing
The mother relied upon the following documents:
a)Amended Application filed on 5 October 2016;
b)Notice of Risk filed 2 August 2016;
c)Affidavit of Ms Eddy filed 6 October 2016;
d)Affidavit of Mr S filed 6 October 2016;
e)Affidavit of Ms E filed 6 October 2016; and
f)Case Outline document dated 13 October 2016.
The father relied upon the following documents:
a)Response filed 2 June 2014;
b)Affidavit of Mr Beaumont filed 7 October 2016;
c)Affidavit of Ms Beaumont filed 7 October 2016; and
d)Case Outline document dated 13 October 2016.
The Independent Children’s Lawyer sought to rely upon the following documents:
a)Family Consultant Memorandum by Ms K dated 2 June 2014;
b)Family Report of Ms B dated 25 March 2015;
c)Report of Ms O dated 5 July 2016; and
d)Family Consultant Memorandum by Ms D dated 13 October 2016.
The following documents were made Exhibits in the proceedings:
a)Exhibit 1 - Report of Ms O dated 5 July 2016;
b)Exhibit 2 – Child Dispute Conference Memorandum by Ms K dated 2 June 2016;
c)Exhibit 3 – Family Report of Ms B dated 25 March 2015;
d)Exhibit 4 – Child Inclusive Memorandum by Ms D dated 13 October 2016;
e)Exhibit 5 – Orange tabbed documents from Sleeve 1 of material produced on Subpoena from the Department of Family and Community Services being:
i)Tab 1(a) – contact record dated 16 June 2014, page 1 of 5;
ii)Tab 1(b) – contact record of 16 June 2014 continued, page 2 of 5;
iii)Tab 1(c) – contact record of 16 June 2014 continued, page 3 of 5;
iv)Tab 1(d) – contact record of 16 June 2014 continued, page 4 of 5;
v)Tab 2(a) – contact record dated 1 October 2014, page 1 of 7;
vi)Tab 2(b) – contact record of 1 October 2014 continued, page 2 of 7;
vii)Tab 2(c) – contact record of 1 October 2014 continued, page 3 of 7;
viii)Tab 2(d) – contact record of 1 October 2014 continued, page 4 of 7;
ix)Tab 3(a) – contact record dated 16 September 2013, page 1 of 6;
x)Tab 3(c) – contact record of 16 September 2013 continued, page 3 of 6;
xi)Tab 3(d) – contact record of 16 September 2013 continued, page 4 of 6;
xii)Tab 4(a) – contact record dated 7 May 2013 page 1 of 5
xiii)Tab 4(b) – contact record of 7 May 2013 continued, page 2 of 5
xiv)Tab 4(c) – contact record of 7 May 2013 continued, page 3 of 5
xv)Tab 5 – Assessment Record dated 2 October 2014, page 2 of 3.
f)Exhibit 6 – Tab ‘M1’ from Sleeve 8 of material produced on Subpoena from (omitted) Public School being a handwritten record of conversation with X;
g)Exhibit 7 – Tabs ‘M1’ and ‘M2’ from Sleeve 9 of material produced on Subpoena from the Department of Family and Community Services being;
i)Tab “M1” – contact record, undated, generated 25 August 2016 at 12.41, page 4 of 5; and
ii)Tab “M2” – contact record, undated, generated 25 August 2016 at 12.27, page 2 of 4.
h)Exhibit 8 – Tab ‘M1’ from Sleeve 10 of material produced on Subpoena from New South Wales Police being event number (omitted); and
i)Exhibit 9 – Tabbed documents from Sleeve 11 of material produced on Subpoena from New South Wales Police being:
i)Event reference (omitted) of 21 August 2013, two page document;
ii)Event reference (omitted) of 5 September 2013, one page document.
Both of the parents were cross-examined, as was Ms D, the author of the Child Inclusive Conference Memorandum.
The Evidence
Relevant Events
The mother’s now husband, Mr S, was born on (omitted) 1984.
The mother was born on (omitted) 1984.
The father was born on (omitted) 1985.
The father’s now wife, Ms Beaumont (now Beaumont) (also known as Ms Beaumont), was born on (omitted) 1989.
The parties commenced living together in 2003.
On (omitted) 2004, X, the first child of the parties was born.
The parties were married on (omitted) 2006.
The parties’ second child, Y, was born on (omitted) 2006.
There is very little evidence about the care of the children prior to the parties’ first separation in 2007. It appears that it was the mother who was the children’s primary carer during the early years while the father was busy in full time employment. Both X and Y started attending day care very early on, X from when he was 9 months old and Y when she was about 4 months old.
In 2007 the parties separated for a period of some months. During this period the children lived with the mother, it appears in Queensland, with the father visiting and spending time with them from time to time, including living with the mother and the children in Queensland while the parties attempted reconciliation.
On 28 April 2008, final parenting orders were made by consent (“2008 Orders”). The 2008 Orders, made by as he then was, Federal Magistrate Donald, in essence provided as follows:
a)the parents to have equal shared parental responsibility for the children;
b)the children to live with the mother 9 nights per fortnight and with the father 5 nights per fortnight (being each alternate weekend from Friday through to Monday in the first week and from Wednesday through to Friday in the second week); and
c)the mother agreed to live with the children in the (omitted) suburbs of Sydney.
From the Court file it is apparent that the first application for final orders was made by the father on 14 February 2008. According to the mother at the time that these orders were made the parties had reconciled and were living together at the home of the paternal grandparents.
Between April 2008 and final separation at the end of 2009, both children attended day care while the parties worked. The parties were assisted by the father’s parents in getting the children to and from day care. The parties shared the care of the children depending on who was at home as they worked different hours and were available to care for the children at different times of the day. The father worked during the day while the mother worked in the evenings and on weekends. As such, it appears that it was the father who had the care of the children for most of the time when they were home from day care.
At the end of 2009 the mother left the former matrimonial home and went with the children to a women’s refuge at (omitted) where she remained for about six months. Subsequently she moved to rental accommodation.
The mother’s evidence is that after separation in 2009 the children lived with her and the father in accordance with the 2008 Orders. While the father talks about final orders being made after separation in 2009 and the children living with the mother and spending alternate weekends with him pursuant to those orders, no such orders were made in 2009 or 2010 and the father’s evidence was not explored in cross examination[1]. It appears that the parties’ evidence in this regard may in fact be consistent - namely, that the children lived with each of the parents in accordance with the 2008 Orders after the parties’ final separation in 2009 until either mid-late 2010.
[1] And indeed the March 2011 final orders (referred to later in these Reasons) are very different
The mother does not recall exactly when, but she thinks that it was about the end of 2010 that her grandfather became terminally ill. Consequently she decided that she was going to travel to Queensland for two weeks to visit her grandfather and because the father refused to permit the mother to travel with the children she left the children with the father and travelled to Queensland by herself. The mother says that upon her return the father refused to allow the children to live with her in accordance with the 2008 Orders, but that he did permit the children to spend time with the mother at the father’s house. The mother says that at the time she had to leave the rental accommodation which had been provided to her by the women’s refuge and she had to find a place to rent. She eventually found a one-bedroom unit at (omitted) which was not suitable for the children. She agreed with the father to leave the children living with him as she thought that that was the best thing for the children at the time. X was about six years old and Y was about four years old. The mother did not have any concerns about the care of the children were receiving in the father’s household at the time. Over the next few months the mother travelled between New South Wales and Queensland as much as possible prior to her grandfather’s death on (omitted) 2011. She returned to Sydney one week after her grandfather’s funeral.
Meanwhile, the father says that it was in mid-2010 that the mother gave up the care of the children to him and moved to Queensland.[2] Because such an arrangement was inconsistent with the Court orders at the time[3], the father says he made an application for orders in the Federal Magistrates Court at Parramatta.
[2] The father said that it wasn't until reading the mother's material filed in these proceedings that he became aware that the reason for the mother's move to Queensland was for the purposes of being with her grandfather. He says that at the time that this occurred the mother did not inform him that her grandfather was ill.
[3] The only orders at the time were the 2008 Orders
Sometime in 2010, the mother commenced a relationship with her now husband, Mr S.
The father commenced a relationship with his now wife, Ms Beaumont, in or about (omitted) 2010, and they started living together in (omitted) 2010. Ms Beaumont has two children from a previous relationship, C born on (omitted) 2008 and B born on (omitted) 2010.
It is not clear when, but at some stage before December 2010 the police applied for and obtained an Apprehended Violence Order (“AVO”) for the protection of Ms Beaumont as against the mother. The AVO was made in circumstances where the mother attended the father’s home and tried to climb into the house through a window. The mother agreed in cross-examination that such actions would have been upsetting for the children, that she created a commotion and that the situation which was created was not a good situation for the children.
The father also said in his evidence that what precipitated his Application for final orders in late 2010 was an incident that occurred at (omitted) Shopping Centre shopping centre. He says that on this particular day the mother approached him and Ms Beaumont, snatched the children from them and ran through the shopping centre with the children. The mother ran into a shop and began screaming and yelling that the father was stealing the children. The mother denies that she was yelling and screaming although she does agree that she took the children on this occasion, and that they remained with her overnight. Security became involved and told the father to leave the shopping centre. The mother was subsequently arrested, according to the father’s understanding because she had breached the AVO which had been made for the protection of Ms Beaumont. After this incident the father went to the Court to file an application for the children to be returned to him.[4]
[4] From the court file it is apparent that an application for final orders was made by the father on 20 December 2010 although the father in his affidavit says that the application was made on 23 December 2010.
The mother conceded in cross-examination, that at the time of the (omitted) Shopping Centre incident she was not thinking about what was best for the children and that what she did, it in taking the children on this occasion, was not good for the children.
On 18 March 2011 final parenting orders were made on an undefended basis by Federal Magistrate Donald[5] (“2011 Orders”). Those orders provided as follows:
[5] as he then was
1. Leave is granted to proceed in the absence of the Mother.
2. All previous parenting orders in relation to the Children are discharged.
3. The Children X born (omitted) 2004 and Y born (omitted) 2006 live with the Father.
4. The Children spend time with the Mother as agreed between the Mother and the Father.
5. The Father has sole parental responsibility for making decisions about the day to day care, welfare and development of the Children.
6. The Mother is restrained from removing and/or causing or allowing the Children to be removed from the care of the Father.
7. Subject to Order 4 herein, the Mother communicate with the Children only by way of telephone between 5pm and 6pm each Tuesday and Thursday with the Mother to telephone the Children on the Father’s mobile telephone.
8. Pursuant to section 65DA(2) 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 is set out in Attachment A and these particulars are included in these orders.
9. All outstanding applications are dismissed and the proceedings removed from the list.
(Attachment A omitted.)
The father’s evidence is that he understood the 2011 Orders provided for him to have sole parental responsibility for the children, and not only in relation to day to day matters but also in relation to all long-term decisions. The mother conceded in cross-examination that the father had sole parental responsibility as a result of the 2011 Orders.[6]
[6] such answer was given during her cross-examination by counsel for the independent children's lawyer in respect of arranging the children to see a school counsellor in 2013
The father says the mother was aware of the proceedings after they had been commenced and that he had spoken to her about them. The father says that the mother did not fully engage and was not present in Court on the day that final orders were made. The mother says that not only was she not present in Court on the day that final orders were made but that she was not legally represented at the time either. She says in her Affidavit that she was distressed and distracted by her grandfather’s illness and death to the point that she had “no emotional energy left to apply to the parenting matters”.
In re-examination when asked why she had not contested the 2011 Orders, the mother said that she felt it was best for the children to stay living with the father. She said that at the time the parties were on talking terms and the father had assured her that she would still be seeing the children.
Given the mother’s evidence in re-examination, the Court does not accept that the mother did not partake in the parenting proceedings because she was so distressed and distracted by her grandfather’s illness and death, noting that her grandfather did not pass away until more than four weeks after those final parenting orders were made. The Court accepts that the mother was at all times aware of the proceedings and that she chose not to participate in an active manner in those proceedings. In this regard the Court finds that the mother was of the view that it was in the children’s best interest for them to live with the father and that if she had thought otherwise, she had placed her own needs above those of the children.
In May 2011 the mother began telephoning the children as provided for in the 2011 Orders. The father says that the mother would try to arrange time between her and the children via the children rather than speaking to the father about her proposals as to when she would be spending time with the children.
Between the making of the orders in April 2011 until December 2013 the children spent time with their mother, according to the father on alternate weekends and during school holidays. The father says that there were “many occasions” when arrangements were changed at the last minute because the mother would cancel. The mother in her evidence says that she only spent time with the children as determined by the father, and that she began to try to see the children each second weekend. The children also spent regular block time with the mother during school holiday periods, sometimes half the school holidays and sometimes the whole of the school holidays. The mother alleges that the father often cancelled the arrangements for the children to spend time with her on weekends. It appears from both of the parties evidence that unless there was a change, the children spent alternate weekends and block time during school holiday periods with the mother. The Court is not able to make any findings about the regularity of such alternate weekends or school holiday periods. It is clear that the arrangement ultimately broke down resulting in the children spending no time with the mother and culminating in the current proceedings.
On (omitted) 2011 A was born. He is the child of the father and Ms Beaumont.
On 12 August 2011, the parties were divorced.
In about early April 2012, the mother, according to the father, notified him via text message that she could not afford to telephone the children each Tuesday and Thursday, as provided for in the Orders, and that she would only do so from now on, on Thursdays. The mother says in her evidence in chief that the telephone communication was not happening regularly, that she was making the calls but that they were not usually being answered. The mother made some of these phone calls from a pay phone, and that there was at some inconsistency by her in keeping up with this arrangement.
On (omitted) 2012, the mother and Mr S were married. According to the mother’s evidence in chief, they separated in September 2013 and recommenced living together in December 2013. In her Affidavit the mother says that her and Mr S “have lived together continuously since then.” This appears to be in contrast to what the mother said to the Family Consultant during the interviews in December 2014, namely that at the time of the interviews she and Mr S were in the process of re-establishing their relationship.[7] This was not the subject of any cross examination. According to the evidence in the mother’s case she and Mr S remain living together at the time of final hearing. There is one child of that relationship, D, who was born on (omitted) 2012.
[7] see paragraph 17 of Family Report (Exhibit 3)
In about December 2012 the parties attended a mediation conference which was initiated by the mother. There was no change to the 2011 orders subsequent to that mediation.
In about mid-2013 the mother contacted the children’s school and asked for counselling to be arranged for the children through the school. She did this without any consultation with the father and indeed without any notification to the father. Such actions were done in circumstances where both parties believed that the father had sole parental responsibility for the children.
On 21 August 2013, the parties had agreed for the mother to spend time with the children from 7pm. When the mother arrived, the father asked her why she had involved the children’s school in the family law matters. The parties then started arguing, both yelling and swearing at each other. This occurred within earshot of the children, who became upset and started crying. The father indicated to the mother that she could not see the children as a result of the argument the parties had. The mother called the police who attended. The father indicated that time would occur if the mother contacted him in the next few days and was reasonable when she did so. The children did not spend time with the mother that evening as the mother agreed not to press for time with them. Time between the children and the mother subsequently resumed in accordance with the parties’ agreement pursuant to Orders.
On 6 September 2013, the father made a complaint to (omitted) Police, which is recorded as follows:
… BEAUMONT attended (omitted) Police Station as he wanted to report that his ex… EDDY has been calling him on his mobile phone asking for access to the children. BEAUMONT is refusing to let EDDY (sic) see the children as he says she makes promises to visit them/or take them out and then lets them down. BEAUMONT says he will allow her to have access to the children if she signs paperwork agreeing to see the children on a regular basis as this is more stable for them. BEAUMONT was making enquiries regarding an AVO being applied for on his behalf…
The father was cross examined by Counsel for the Independent Children’s Lawyer in respect of this complaint, but only very briefly. He said that he thought the mother was harassing him at the time about seeing the children, and that he would have agreed to time if it was on a regular basis.
The father’s evidence is consistent in the regard, that is, he is saying that throughout all of the years after the mother went to Queensland she was never consistent with her time with the children, and that he wanted a routine for them. It is difficult to see how such a position regarding wanting consistency for the children necessarily ties in with the father’s insistence on the 2011 Orders, even as at the date of final hearing, but these possible conflicts in evidence were never explored in cross examination.
The father says that in November 2013 the mother started messaging Ms Beaumont, a matter which was subsequently reported to the Police by Ms Beaumont. The messages were to the effect of “I hope your mum dies”, “your mum is dying least my mum’s alive” and “instead of arguing with me you should be going to spend time with your dying mother.” Unfortunately these matters were not put to the mother in cross-examination, nor explored with any of the parties’ witnesses.
The father further said that on 24 December 2013 he collected the children from the mother. According to the father there had been an agreement that she would collect the children for the weekend after Christmas. During changeover on 24 December 2013 the mother said that she had not agreed to have the children on the Friday and that she had a party to go to. The father says that he did not hear from the mother for a period of about four weeks after this and that she did not call the children over the Christmas period or make any contact with the children at all. The father says that he observed both of the children to be distressed and disappointed. The father then made contact with the mother shortly prior to the Australia Day weekend and arranged for the children to spend time with the mother on the Australia Day weekend. The father says that on the day that the children were to commence spending time with the mother she messaged him saying that it was her anniversary and that she would not be seeing the children. The father observed both of the children to be upset and distressed after being told that they would not be spending time with their mother and in particular that X was distressed and began to cry.
The mother’s evidence is that she spent time with the children until 24 December 2013 and that she went on holiday from 6 January 2014 to 18 January 2014. She says that she asked the father for make-up time and that it had been agreed between the parties for the children to spend time with the mother from the end of school term until 24 December plus two weekends in a row before that. The mother then says:
The children should have been in my care from 24 January to 26 January 2014. That weekend included Australia Day. I thought that the children would not spend that weekend with me because in the past Mr Beaumont had always refused to allow the children to spend time with me on Australia Day. I made arrangements to go away on the Sunday of that weekend.
…
I telephoned and spoke to the children on Tuesday, 21 January 2014. The children were asking me why I did not take them with me on holiday. Mr Beaumont interrupted the call to ask me why I had not telephoned the children while I was on holiday. I said I had not rung because I was either out on a tour or at times I had no reception. He said that there are always payphones. He said:
“Are you taking them this weekend?”
and I said:
“No I’m going away for the Australia Day weekend.”
He said:
“It is your weekend to have them.”
And I said:
“You always have them on Australia Day.”
And he said:
“You always renege on the days you are meant to have them.”
Mr Beaumont ended the conversation saying:
“You are not seeing the kids until you take me to court.”
Consequently the father made the decision that he could not put the children through the disappointment of not seeing their mother after time had been arranged and agreed and he did not agree to any further time between the children and the mother. The father says “I found it too distressing for the children to be constantly disappointed at having their time cancelled.”
The father’s evidence is that the children did not spend any time with the mother from December 2013 until June 2014. The mother’s evidence is that between January 2014 and June 2014 she saw the children when the father allowed but not on a regular basis.
Unfortunately for the Court there was very little cross examination of either of the parents in relation to these events and the thoughts and reasons behind each of the parents’ actions. From the Court’s perspective, the Court would have been assisted by cross-examination of the mother in relation to her attitude to the children and spending time with the children over and above her own needs.
On 14 April 2014 the mother commenced these proceedings by way of Initiating Application. In summary the mother sought orders for the children to spend time with her every second weekend during school terms and half of the school holidays.
The father filed his Response on 2 June 2014. The only order which the father sought at the time was for the mother’s Initiating Application to be dismissed.
On 2 June 2014 interim parenting orders were made by consent. Those orders suspended the spend time with order made in March 2011, and provided for the children to spend time with the mother each Sunday from 10am to 4pm, commencing on 8 June 2014. There was also an order in relation to changeover.
The 2 June 2014 Orders were varied further on 30 July 2014 and stated:
a)the children spend time with the mother each Sunday from 9am to 4pm commencing 3 August 2014, except for 14 September 2014; and
b)the order for the children to spend time with the mother was to be suspended on 10 August 2014 and on Father’s Day 2014 and the children were to spend time with the mother on the Saturday prior from 9am to 4pm in place thereof.
On that day, the parents also attended a Child Dispute Conference with Ms K. The memorandum is referred to later in these Reasons.
In her Affidavit, the mother alleges an incident at changeover on 8 June 2004. She says that on this occasion, the father referred to Mr S’s cousin as a ‘dog’ and that Ms Beaumont was yelling abuse at the mother, all in front of the children. Neither of the parties was cross examined about this incident.
The mother’s evidence is that the children spent time with her in accordance with the “June – July orders” from June 2014 to 6 September 2014. However the telephone communication in accordance with the 2011 Orders continued not to occur.
There was a short period of separation between the father and Ms Beaumont in late 2014 and at the time of the Family Report interviews the father and his current partner were in a state of relationship flux. Ms Beaumont was not interviewed by the Family Consultant.
The last time that Y spent time with the mother in accordance with the interim orders was the weekend of 6 September 2014.[8] The following Sunday, being 14 September 2014 was a date on which no time was to occur in accordance with the July 2014 orders.
[8] this being a Saturday as Sunday 7 September 2014 was Father's Day
On Sunday, 21 September 2014 an argument occurred at changeover. The father was not present at the time, and in his case he did not call any evidence from his sister or his brother who were the adults present at the time of changeover, or to use the terminology of the orders the “nominees” of the father at the time of changeover.
According to the mother, the father’s nominees were late in arriving with the children. Instead of arriving at 9am they arrived at 9:15am. When they arrived the mother said to the father’s brother “why are you late?” to which he responded “shut the fuck up”. X then got out of the car crying, he walked over and sat in the mother’s car. While this was happening the father’s sister leaned over and yelled at the mother through the open passenger door “Shut the fuck up. You have no right bitch when you did not show up last weekend.”
The mother then telephoned 000. She stood behind the car in which Y was, to stop Y’s aunt from driving away with her. It is not clear why the mother thought it was appropriate that she do this or why Y did not get out of the car and walk over to her mother. According to the mother’s evidence there was nothing and no one preventing Y from leaving the vehicle, although the mother says that Y’s aunt did climb over the front seat and sit in the back next Y. The mother then saw Y’s uncle get into the car she says to ring the father. They then drove away. The police arrived as they were driving out of the car park. The mother denies that she verbally abused either of the two adults who were there on this occasion or that she attempted to hit the father’s sister.
The evidence in the father’s case is that on 11 September 2014, the mother confirmed in a telephone conversation with the children that she would be seeing them on the weekend of 14 September 2014.[9] As a result the father and the children attended the changeover and waited for 30 minutes on that occasion. The children were disappointed and the father had to console them.
[9] which did not accord with the orders made on 30 July 2014
The evidence which the father gives about the incident on 21 September 2014 is at best second hand hearsay, and as already noted no evidence was called from the adults present at changeover on this occasion. In this regard the Court was asked to draw a Jones & Dunkel inference[10].
[10] namely that such evidence would not have assisted the father's case
The father’s evidence in relation to this event is as follows:
On 26 September 2014 I instructed my solicitor to write to the mother’s solicitor regarding Ms Eddy attending changeover and verbally abusing my brother Mr D and sister Ms J in earshot and view of the children. X and Y witnessed the mother’s behaviour. X went to the mother’s care but Y hesitated and became distressed and upset. Ms Eddy approached my sister and attempted to hit her whilst Y was holding onto my sister. Y returned to my sister’s care and refused to leave with the mother. As a result of this incident Y refused to attend contact or speak to her mother.
Importantly, interviews with the Family Consultant for the purposes of the preparation of the Family Report were conducted on 22 December 2014. That Report is referred to later in these Reasons. However it appears that neither of the parties addressed with the Family Consultant what occurred at changeover on 21 September 2014.
Y however spoke with the Family Consultant about this incident and indicated that at changeover, a couple of weeks prior to the assessment, as soon as they got there, the mother yelled at “(omitted)”. She said that the mother was going to “bash up” (omitted), saying to her “Do you want me to hit you (omitted)?”[11]
[11] There was confusion during the hearing as to whether (omitted) was the nickname of the paternal aunt or the paternal uncle and exactly to whom Y was referring when she recounted this incident to the family consultant given what is contained in paragraph 77 of the Family Report. Once again and unfortunately none of the parties sought to cross-examine the author of the family report. More confusion arises for the Court because paragraph 80 of the Family Report seems to indicate that (omitted) is the paternal uncle Mr D.
During the interview with Ms D on 13 October 2016 for the purposes of the Child Inclusive Conference, Ms D records of Y as follows:
Y admitted that she used to like spending time with Ms Eddy until the incident at changeover where she claimed that, because the paternal aunt had been late, Ms Eddy had become angry and “fought” with the paternal aunt. Y claimed that Ms Eddy “threatens my auntie and uncle that she was going to hit them.” Y said that she does not want to spend any time with Ms Eddy because she fears she might hit her and not return her to Mr Beaumont. When asked if Ms Eddy had ever hit her, she conceded that she had not. Y claimed, however, that Ms Eddy had once dragged her by the arm, causing a bruise…
Y’s account to Ms D of what could only be the September 2014 incident is slightly different to what she said to the Family Report writer. Whether this is because Y was not being truthful, or because she might have been confused, or mistaken, or because what she said was not correctly recorded was not explored in cross examination, nor was it the subject of any submissions. At the end of the hearing the Court was left with differing accounts of the incident, together with the complete lack of evidence in the father’s case from the other adults who were present at that changeover. As such, the Court does make a Jones & Dunkel inference but even with that inference, the events are still unclear. What occurred on that day is at least the following:
a)There was an argument between the mother and either the paternal uncle and/or aunt at changeover in front or within the hearing of the children;
b)Y refused to go with her mother; and
c)X left with the mother.
The mother said during the hearing that she does not believe that anything she said or did on 21 September 2014, or any subsequent changeover where Y was present, would have caused Y to be so distressed that she would refuse to spend time with her.
In a letter dated 26 September 2014 from her solicitors, the mother denied the words and actions attributed to her in the correspondence received from the father’s solicitor of 26 September 2014[12]. The letter then goes on to say that the mother will be present at changeover on the following Sunday in accordance with the current orders.
[12] The Annexure to the father’s Affidavit being the letter from the father’s solicitor dated 26 September 2014 was incomplete, such a matter not being rectified during the hearing.
Notwithstanding what occurred on 21 September 2014, X continued to spend time with the mother in accordance with the July 2014 orders while Y did not.
On 22 December 2014, the parties, the children and Mr S attended interviews for the purpose of the preparation of a Family Report.
At the time of the Family Report interviews, the father and Ms Beaumont were having relationship difficulties, and as noted elsewhere in these Reasons, Ms Beaumont did not attend the interviews. The evidence contained in the Family Report is referred to later in these Reasons.
Another unfortunate incident occurred at changeover on 15 March 2015; unfortunate because of the impact it must have had on X. The incident is described in the father’s Affidavit as follows:
…On this occasion my mother attended the changeover with X for his time with the mother. The mother’s partner approached my mother and advised her that Ms Eddy was inside getting food. My mother left X in the care. A short time later my mother saw the mother’s partner leave the McDonalds restaurant and entered his care with X and his baby without the mother. My mother approached the mother’s boyfriend and questioned where Ms Eddy was. The mother’s boyfriend eventually advised that Ms Eddy was at work. X returned to my mothers care and they left. A short time later Ms Eddy attended upon my mother’s home. My mother was home with her 2 children and 5 grandchildren, Ms Eddy commenced banging on the door and saying to my mother, “you dragged X out of the car”, “you are stalking my husband”” and “you let your mother die in a gutter”. My mother asked Ms Eddy to leave but she continued to yell and swear for some time.
The mother in her Affidavit describes the incident in this manner:
115. On 15 March 2015 Mr S and D went to pick up X. Mr S returned home without X, Ms T followed him in her car and she stopped him in the street and removed X from his motor vehicle. Mr S told me that X was crying when Ms T removed him from the car.
116. I then went to Ms T’s home at (omitted).
117. When I arrived at Ms T’s home, I knocked on the front door. Ms T opened the front door and I said:
“You removed X from Mr S’s car after you followed him down the street.” And
“You dragged X out of the car”. And
“You are stalking my husband” and
“I have my Court orders with me. I am waiting for the police.
118. Ms T then opened the screen door an stood right in my face, Mr Beaumont’s brother Mr D came out of the house and said to me: “Fuck off”.
Ms T said “Just leave”
She was yelling as she said that.
119. As Ms T was speaking Mr Beaumont’s other brother Mr C came from the side of the house. He said:
“What the fuck is going on?”
I said:
“I’m here to get X and Y”
He said:
“They don’t want to go with you”
As he said that Mr D walked towards my car. He was waving his fists. I was concerned he was going to damage the vehicle. I heard Ms T say:
“She’s not worth it. She’s not worth it”.
There was correspondence exchanged following this incident between the parties solicitors.
X did not spend time with the mother on this occasion, but did so on subsequent occasions until 28 June 2015.
When cross examined about having other people at changeover the father said that the orders clearly said “the mother and her nominee”. The father said that it was his belief that the mother personally had to collect the children at changeover. He agreed that he was the one who told his mother not to allow X to go with Mr S on 15 March 2015. The father also said that the orders provided for the father “or his nominee” to attend changeover, and therefore there was no difficulties with other adults attending changeover on his behalf. The father believed the mother had to strictly adhere to the orders in this regard. The mother, the Court finds was confrontational when she arrived at the paternal grandmother’s home to take the children. The father, the Court finds, was unreasonable in telling his mother to get X from Mr S’s car.
Incidents at changeover continued to occur, culminating in X’s cessation of time with the mother.
The evidence in the father’s case is that on 12 April 2015, his brother attended with the children for changeover. Y refused to get out of the car even after being asked to do so by the mother. The mother then entered the car and removed Y’s seat belt and attempted to grab her. Y began to scream and grabbed the back of the front seat resisting the mother’s advances. The mother then attempted to placate her offering her chocolates. Y then went to the front seat saying she did not want to go. Y did not go with the mother and returned to the father’s home with bruising on her arms which the father asserts came about as a result of the mothers actions.
What Y is reported to have said to Ms D appears to be consistent with what the father says occurred at changeover in April 2015.
The mother in her Affidavit says that the last time she saw Y at changeover was 12 April 2015, where she sets out her version of events. She says that on this occasion she had taken Easter eggs with her to changeover and that when X got out of the car and came to her car she took the Easter eggs over to Y giving her a kiss hello. The mother says that she noticed a bruise on Y’s right arm and that it looked like a grab mark. Then when she asked the paternal uncle about the bruising he apparently said “you did it.” It is not clear what this could have been a reference to as Y had not spent any time with her mother since 6 September 2014. In any event the mother says that she reached in and undid Y’s seat belt and then tried to lift Y out of the car. The father’s cousin was sitting in the front seat feeding Y lollies and she grabbed Y who started to cry. The mother says that she immediately stopped trying to lift Y. She then apparently said to Y “how did you get that bruise?” to which Y replied “a friend at school did it”. The mother’s evidence is that the uncle was telling her to put Y down and that the cousin was pulling Y towards her in the front seat. The mother then says that she stepped back and that Y climbed through into the front seat and that the car was driven away with Y sitting on the cousin’s lap.
The mother was not cross-examined about this event at changeover on 12 April 2015 by either Counsel for the father nor Counsel for the Independent Children’s Lawyer. The father’s evidence in cross examination is that he was not there, and that if it happened it was an upsetting event.
Since about mid-late 2015 the mother and Mr S have lived in rental accommodation in (omitted), with Mr S’s sister, her de facto husband and their niece who is aged 14. The niece has been living with Mr S’s sister and her de facto since she was 9 years of age, after being placed there by the Department of Family and Community Services. The mother says that her and Mr S have the intention of moving from this residence, although such evidence was not explored in cross-examination during the hearing.
The mother’s evidence about an incident on 28 June 2015 is as follows:
On 28 June 2015 when I went to return X after he had spent time with me on that day Mr Beaumont was not at changeover. Ms Beaumont was in the car park. I could see that she was speaking to someone on her mobile phone. Mr S and I waited in the car with X. Mr Beaumont arrived at about 4.15pm. He removed X for the car. X cried. Mr Beaumont spoke to Mr S in an aggressive manner. He also said
“That’s the last time you will see him”
The father’s evidence is in stark contrast: It reads:
On 28 June 2015 I met Ms Eddy at McDonald’s for changeover. I got X out of the car. Ms Eddy and I started to argue. Ms Eddy came up to me and was standing very close to me with her face at mine. I began to walk away with X. X was holding my hand at the time. Ms Eddy followed me and started saying “go on hit me, hit me”. I walked to her husband Shaun who was standing on the other side of the car and said to him to ‘calm her down’. Ms Eddy continued yelling. Ms Eddy turned to my now wife Ms Beaumont and called her a “slut”. Ms Beaumont said to Ms Eddy “no wonder the children are scared of you look at the way you are carrying on”. Ms Eddy continued to yell. Ms Beaumont locked the car doors and put the windows up. Ms Beaumont, myself and X left.
X said to Ms Beaumont on the way home “I’m sick of the way mum treats dad”. At the time he was upset and crying.
In her Affidavit, the mother describes an incident she says occurred on 26 April 2015. She says that the last time X spent time with her, prior to coming to live with her on 1 August 2016, was on 28 June 2015.
The father says that X did not attend changeover on 5 July and 12 July 2015 due to the mother’s behaviour at the previous changeover[13] and that X would get upset when it was time to go see his mother.
[13] 28 June 2015
It is important to set out in detail some of the parties’ evidence. The mother’s Affidavit contains the following:
122. On 26 April 2015 I went to changeover with Mr S and D. We arrived just before 9.00am.
123. Ms T dropped off X. She was a few minutes late but I understand that can occur because of traffic.
124. I took X back to changoveover arriving there at 4.00pm. On arrival I got out of my car. I saw Ms Beaumont and her sister-in-law in their vehicle.
125. I got back into my car and waited for 5 minutes before I drove around and parked in front of Ms Beaumont. I saw her stick her finger up at me as she was speaking on the phone.
126. I went to (omitted) Police Station to seek advice from the Police because I was not willing to hand over X to Ms Beaumont. I knew that she was no longer Mr Beaumont’s partner because I had read the family report that had been released on 25 March 2015 in which Mr Beaumont told the family report writer that he and Ms Beaumont had just separated.
127. The police officer gave me certain advice. I contacted the Department of Community Services to report the circumstances. They gave me a report number (omitted). They gave me certain advice.
128. Later in the afternoon I received a telephone call from Senior Constable H who told me that Mr Beaumont was at the police station, that he had been told what I had done and that he understood my reasons. I then received a text message from Mr Beaumont asking me to take X to (omitted) stating that he would be there in 5 minutes. In my reply I said I would take X to changeover but it would take me more than 5 minutes to get there.
129. When Mr S and I arrived at the (omitted) McDonalds Mr Beaumont was there with Ms Beaumont, her brother Mr B, his wife and Ms T. I felt intimidated with all these people watching me drive in and they began yelling at me when I arrived. Mr Beaumont came to my car, begun removing X. I said:
“I won’t be dropping X to Ms Beaumont”.
He said:
“You have to drop X to my nominated person”
I said:
“I won’t be changing over with an ex-partner as you have told the Court this”
Mr Beaumont walked away. X got into Ms T’s car. Ms Beaumont started swearing at me and twice threatened to hit me. She then said:
“X won’t be getting dropped off next Sunday”
I said:
“Really, well Court papers state otherwise.”
Everybody except the brother’s girlfriend yelled abuse at me. Ms Beaumont was continuing to yell out abuse at me. I got back into my car with Mr S. I was stressed and upset. X was crying.
131. X did not spent any time with me from 28 June 2015 until 1 August 2016 when I took him into my care as set out later in this affidavit.
133. I continued to go to changeover each Sunday until 20 September 2015. Mr Beaumont was never there.
The father’s Affidavit contains the following:
On 26 July 2015 Ms Beaumont went to changeover to collect X from Ms Eddy following her contact. Ms Eddy refused to hand X to Ms Beaumont. X is very familiar to Ms Beaumont. I instructed my solicitor to write to the mothers solicitor on 31 July 2015.
Following this changeover where Ms Eddy refused to hand X to Ms Beaumont, X refused to attend contact with the mother until the mother withheld him on 1 August 2016.
The letter referred to by the father of 31 July 2015 makes no mention of what the father alleges occurred on 28 July 2015.
It appears that both parties are referring to the same incident. No records of the New South Wales Police in respect of this event were tendered.
In any event, whenever the event occurred, that is whether it was in April or in July 2015, it must have been upsetting for X, as certainly as all of the other incidents at changeover.
On 13 February 2016, the father and Ms Beaumont were married.
On 14 and 16 March 2016, the mother attended the children’s school. Y started crying when she saw the mother. Both children went home with Ms Beaumont and did not speak to the mother.
On 10 June 2016 Orders were made by the Federal Circuit Court by consent of the parties, for the parents and the children to attend upon Ms O for the purpose of family therapy. At the time the matter was set down for final hearing on 11 and 12 July 2016, and consequently the family therapy was very limited. Ms O’s report of 5 July 2016 is referred to later in these Reasons.
Following the release of Ms O’s report, consent orders were entered into on 11 July 2016, inter alia, for the children to live with the father and spend time with the mother at the (omitted) Contact Centre. The parties also agreed to attend family therapy with Mr N. Such family therapy did not occur because other events overtook it.
Following the events of 1 August 2016, the Mother filed an Application seeking interim orders for the children to live with her. That Application was returnable on 15 September 2016, when the matter was set down for final hearing on 17 and 18 October 2016.
The final hearing did not conclude on the second day and the matter went over to 3 November 2016 when closing submissions were made and judgment was reserved.
The Events of 1 August 2016
The mother’s evidence is as follows:
191. On 1 August 2016 I went to X and Y’s school at (omitted) Primary School for education day, which is an opportunity for parents to view their children’s schoolwork and attend an assembly. This was the first time I had seen X since 28 June 2015.
192. On my arrival I went to X’s classroom and sat with him while I looked through his workbooks.
193. After viewing X’s work books in his classroom X walked me over to Y’s room, as I did not know which was her room.
194. I went to the classroom door and knocked. Y was sitting facing the door and she saw me. She got up and went over to the teacher. I could see that she had her hands up to her eyes, They said something that I could not hear. I saw Y walk out of the classroom towards the toilets.
195. The teacher walked up to me and said:
“Y is crying. She is going to wash her face and we will see how she is after that.”
196. X and I sat down in front of Y’s room to wait for her. Y came back from the toilets, walked past us and went to her teacher. They had a conversation that I could not hear.
197. The teach came out and spoke to me and said:
“I have read a copy of the new Orders that you sent to the school. I tried to explain to Y that her Mum is allowed to come to school and allowed to see her and would probably give her a big hug and kiss”.
198. The teacher also said:
“Y told me she was not ready to see you yet. She told me her father did not tell her what was happening and that she didn’t know that you were allowed to attend or that things had changed”.
199. The teacher gave me Y’s school books to look over. X and I walked to the hall where the assembly was to take place.
200. X and I sat on some picnic chairs so that I could read through Y’s school books.
201. I gave X a kiss and he said:
“I want you to take me home I want to live with you”.
I tried to encourage X that he could talk to his counsellor. I said:
“You can tell the counsellor that you want to come and see us and have a sleep over. There are other people that you can tell even when dad and mum are not there with you”.
X said:
“No Dad wants me to say I don’t want to see you but I do”.
202. X gave me hugs. I could see that had tears in his eyes. He said:
“I don’t want to go home”.
I asked:
“Why”
He said:
“I get hurt. This morning I was picking up A and A cried”.
X said:
“Ms Beaumont choked me. All I was doing was picking him up”.
203. As X said that he was crying. I picked him up giving him big hugs. I could feel his body slump. He said:
“Mummy, please take me home.”
I said:
“What about your sister. Does she get into trouble?”
X was still crying saying:
“She always gets into trouble.”
I asked X:
“A smack?”
He said:
“Everywhere. She gets smacked in the face. Sometimes Ms Beaumont even yells and says, “I’ll kill you”.”
204. I was distressed. I didn’t want X to see me cry. We walked up to the office. A secretary came out. I felt sick in the stomach. I left X with one of the office staff who took him to the Principal’s room. A secretary assisted me to the toilets.
205. After I felt better I walked to the Principal’s room. The Principal said:
“I’m assuming you’re aware of what X has just told me”
I said:
“Yes I think so.”
Then the Principal said to X:
“I will have a meeting with you later in the day because I have an assembly to conduct”.
206. X and I eventually attended the assembly. X asked for a finger bun to eat. I stressed to him that he needed to eat his packed lunch, which was only a vegemite sandwich. I asked his teacher to please make sure he still gets his lunch and she said he would.
207. We brought raffle tickets in the library and I walked X to the office where the Principal was going to see him. I left the school.
208. I contacted the Children’s Help Line and told them what happened today. I was given a reference number (omitted).
209. I was extremely concerned about what X told me. I decided after speaking with him that for his own safety I would collect him from school and retain him in my primary care.
210. I went back to X’s school on the afternoon on 1 August 2016. I waited at the front of the school and waited until X came out. I said to X:
“If you don’t feel safe you don’t have to go you can come with me.”
He grabbed my hand. Ms Beaumont was present. She reached for X’s other arm. I said:
“It’s abuse.”
As I said that Ms Beaumont let go of X’s arm and he and I walked across the road.
211. The NSW Police came to my home on 1 August 2016 at about 4.00pm. They spoke to X. I did not hear everything that was said between them. I did hear X say that yesterday the Respondent called him a “d***head”.
212. As the Police were leaving my home one of the Police officers said to me:
“We will contact the father and tell him what X told us. You had better get your documents filed this afternoon”.
213. X has remained in my care since 1 August 2016.
214. X has not spent time with Mr Beaumont since 1 August 2016.
The Police records indicate that on 1 August 2016:
a)X had Book Week at school, an event which the mother attended;
b)During the course of the day the child disclosed to the mother that his step mother has grabbed him by the throat. This caused the mother concern and she contacted her solicitor who is assisting her with her Family Law Court proceedings;
c)X also disclosed ‘this’ to the school Principal who contacted DOCS;
d)At 3pm, after finishing school, X was walking to the car with his step-mother and other siblings, when the mother approached them and took hold of X’s hand and pulled him away from the step-mother, who then contacted the father and the Police;
e)The Police attended and the father showed the Police a copy of the current orders, and the father was advised to contact the Court;
f)The Police attended the mother’s residence and spoke to the mother who informed the Police why she had removed X from the step-mother;
g)The Police then spoke to X who said that he was happy to be with his mum and his step-mother had done nasty things to him;
h)The Police inspected X’s neck which had no visible marks or bruising;
i)The Police advised the parties that a record would be made but that they should consult their solicitors in regards to family law issues;
j)The Police advised the mother that if they wish to make an official report in the future about alleged abuse they could contact the Police; and
k)The Police informed the father about what X had said, and the father indicated that he thought X had been coached by his mother and that there were past incidents similar to this one.
The (omitted) Public School records indicate as follows:
a)That on the morning of 1 August 2016 X was “fixing a game for is little brother otherwise he would have a sulk” the little brother started yelling and crying at X and the stepmother came in and choked X. She asked X why his brother was crying to which X responded that he was just trying to fix up the game for him, and that is when Ms Beaumont started choking him. She did so by putting both of her hands around his neck. Nothing else apparently happened after that, and Ms Beaumont brought the children to school.
b)X was not upset when he came to class. His mother came to the classroom to see him and X then left the classroom to go with his mum to his sister’s room;
c)Apparently X told his mum about what had happened when everybody else was going to the hall; and
d)There were no visible signs of any injury to X at 10 AM that morning.
Both the father and Ms Beaumont gave evidence about what occurred on 1 August 2016.
Ms Beaumont’s version, unsurprisingly, is different to the mother’s. Ms Beaumont says as follows:
26. I have not ever put my hands around X’s throat or choked him. On the morning that Ms Eddy withheld X nothing out of the ordinary happened. X was not picking up A. A is 5 years old and he is almost the same height as X. That morning Mr Beaumont was home in the morning as he was starting work later and he left around the same time as we did.
27. When I dropped the children at school on the 1 August 2016 X said to me “bye Ms Beaumont” and I said “have a good day”, X then saw that some parents were at the school and said to me ‘do you think mum will be at school today”. When he said this to me he looked worried. I responded to him and said “I’m not sure but you will be right mate just tell your teacher if you have any problems”.
28. In the afternoon I attended the school to collect the children. I meet the children at B’s classroom in the afternoons. X came running up to me, he was smiling and he said to me “Hi Ms Beaumont”. I asked him how his day was and he said to me “I seen mum today she came up to my classroom and she was buying me raffles and a finger bun” and “she bought raffle tickets for Y but she didn’t want them”, “Also she was asking me weird questions”. As the children were around I said to him “that’s okay lets talk about it later”. X said “ok” and we walked out the front gate.
29. I saw Ms Eddy out of the corner of my eye coming from across the road. She grabbed X’s arm. I grabbed X’s hand to proceed to my car and Ms Eddy said to me “uh-ah I don’t think so” and “you don’t need to be somewhere you don’t feel safe”. Ms Eddy was still holding onto X’s hand and pulled him towards her. I did not want to hurt him so I let go of his hand.
30. X appeared to be upset whilst Ms Eddy was pulling him across the road.
31. Y saw this occur and ran to my car screaming and crying. I followed Y. I saw Ms Eddy cross the road with X and called Mr Beaumont and told him what happened. As soon as I was off the phone to Mr Beaumont I called the police.
The father in his evidence says he was told by Ms Beaumont that the mother had taken X. He contacted the Police, who then attended the mother’s home to check on X.
The father has had no contact with X since 1 August 2016, except for when he saw him during the Child Inclusive Conference with Ms D.
Other Evidence
Contact records from the Department of family and community services
The contact records relating to 2013 show that C was frightened about getting in trouble from her mum, Ms Beaumont, about soiling her underpants and that a faint bruise was observed on her left thigh. It was further said that Ms Beaumont showed little patience for C, that she is not encouraging of the child and that she speaks sternly telling the child that she will miss out on going to McDonalds because she has soiled her pants.
A contact record from the Department of Family and Community Services indicates that on 16 June 2014, C had a bruise on her forehead, the size of a 50 cent piece. She was asked what happened, and before she could respond Y said “she ran into a wall”. When asked later, C said “mummy did it”. The reporter apparently had concerns regarding excessive discipline with use of a belt but there was no indication whether the mother used the belt or whether it is used as a threat. On 13 June 2014, C after soiling herself, was distressed at the prospect of her mother finding out and said she didn’t want to get the belt. At the beginning of the year, the children, when the weather was very hot, refused to take off their jumpers saying their mother told them they were never allowed to take them off. The records contain an opinion that X has anger issues without a trigger, and that the father has told the school that the children are not to see the school counsellor, under any circumstances.
A contact record from the Department of Family and Community Services indicates that on 26 September 2014 X, Y, A, B and C all appeared very withdrawn and upset. Y had a bruise on her cheek which was purple and a circle shape, there were cuts on their face, it appeared their skin had been broken and that a scab was forming. Y did not say how she got the marks on her. X was quite withdrawn, he screwed up his face crossed his arms and put his head down and he looked pretty frustrated. X wouldn’t say what the matter was. C looked like she was in a lot of pain, she had her legs crossed and arms folded with her head down and she wasn’t smiling. It was noted that C has bowel problems.
A further contact record of the Department of Family and Community Services, discloses that on 1 October 2014, neither Y or X were keen to take off their jumpers even though it was fairly hot. The person making the report believed that the reason the children refused to take off their jumpers was because they were hiding injuries, but this was not confirmed. It was said that the children were very protective of the younger siblings for example, when they are picked up by their stepmother the older siblings are very quick to get the younger siblings bags and they stand very still and won’t talk – like they are trying not to cause any stress. Y was observed to have a bruise on her left cheek described as being 3 cm x 1 cm which was “greeny bluey” in colour and looked fairly new with small scratches around. On her right cheek Y was observed to have a 5 cm sized bruised with scratches around. X reportedly had a 10 cent piece bruise on his top right forehead with slight scratches.
A further contact record of August 2016 states that Ms Beaumont has allegedly grabbed X around the throat after he went to pick his half sibling A up. X has also disclosed that Ms Beaumont hits Y on the face and all over.
There is no evidence that the Department took any action as a result of any of these reports being made.
When asked in cross-examination about these reports, Ms Beaumont denied ever being contacted by the Department or the Police in relation to any of the reported matters, or for any other matter. She did not recall the children having bruises on their faces as noted in the records, and she denied any physical abuse of any of the children.
The father likewise gave evidence that he was never the subject of any investigation by the Department arising out of any of these reports made or otherwise.
Unfortunately, the cross examination of Ms Beaumont and the father was fairly limited notwithstanding that these issues were said to be so important in both the Independent Children’s Lawyer’s and the mother’s cases. Significant areas of evidence such as how the father’s household functions, what happens there on a daily basis, how Ms Beaumont copes with all of the children in the father’s absence, and so on were, to a large extent left alone and unexplored.
Child Dispute Conference 2 June 2014
On 2 June 2014, the parties attended a Child Dispute Conference with a Family Consultant, Ms K. On that occasion, both parents reported to the Family Consultant that the children had not spent any time with the mother since Christmas Eve 2013, and that the father had said to the mother in January 2013 that if she wanted to spend time with the children she would have to take him to Court. The parties were also in agreement that prior to Christmas Eve 2013, the children had been spending time with the mother on alternate weekends namely from after school Friday to before school Monday, for approximately 12 months. There were times when the children did not spend time with the mother in accordance with that arrangement, for example if they were to attend a birthday party, and on those occasions make-up time was not always occurring. The parties were at odds when they spoke to Ms K, as to why time did not always occur in accordance with the agreement.
At the time that they saw Ms K in June 2014, the father’s position was that the children spend no time with the mother “until I know she is for real and she can do it”. The mother’s position was in accordance with her Initiating Application.
Both of the parents had agreed they had been verbally and physically abusive towards each other during their relationship this included: pushing, shoving, wrestling and throwing things. The mother also alleged an incident when the father had kicked her in the ribs after she fell over at a party and hit her head on a table while intoxicated.
At the time, the father reported that the mother was inconsistent in spending time with the children and that the children became upset and cried when the mother did not spend time with them as arranged. The father said that Y had said to him that she was missing her mother. The father also alleged that the mother had taken the children to school late on a number of occasions when they were spending time with her.
The mother denied to Ms K that she had been inconsistent in spending time with the children. She said that she had attempted to access counselling for the children by the school but that such counselling had been cancelled by the father.
It also appears from matters reported to the Family Consultant, that the parents had differing parenting styles. Certainly the parents were not in a position where they could effectively communicate with each other regarding the children and had, at times, arguments between them regarding the children. Their lack of ability to effectively communicate was a matter that the parents were in agreement about.
Family Report dated 25 March 2015
Pursuant to an order made on 30 July 2014, the parties, the children and the mother’s partner attended Family Report interviews with Ms B on 22 December 2014. There was then a number of telephone calls made by Ms B for the purposes of the preparation of the Family Report.
At paragraph 5 of the Family Report the father reported to the Family Consultant that:
On 22 December 2014, Mr Beaumont said that his current partner was Ms Beaumont (born (omitted) 1989, although Mr Beaumont was not certain this date was correct). Ms Beaumont is also known by the first name of Ms Beaumont. Mr Beaumont said that they met in 2010, and that within one to two months of meeting they commenced a relationship. Mr Beaumont was not sure if they commenced living together in 2012 or 2013. Mr Beaumont said that they separated in 2013, but he “did not know” why. He then said they “did not get along [and] ha[d] a few issues, that’s life, though we’re still good mates, she still comes to the house five days a week” On 3 March 2015 Mr Beaumont reported that he and Ms Beaumont had separated, again.
During cross examination, the father said that they were separated for a few weeks, maybe a month, they were not on very good terms and that is why Ms Beaumont did not go to the Family Report interviews.
The mother said to Ms B that between 2 June 2014 and September 2014 the children had been spending time with her in accordance with the orders. Since September 2014 Y had not been spending time with the mother, nor had she been communicating with the mother by telephone.
At the time of the interview with Ms B, the mother was living in a one-bedroom property with her youngest child D, and she was “in the process of re-establishing her relationship with Mr S”.
The mother confirmed that there had been family violence between the parties during their relationship, and conceded engaging in physical violence against the father.
In speaking to Ms B, Y said that there was nothing she did not like about living at her house, which included her stepmother, her little brother, her stepsister and stepbrother, the father and her older brother. Y said that she has always lived in the same house and that she shared a room with her stepsister. She did not identify anything she did not like about her father. She did not like when X did not play with her.
Importantly, given the issue of risk in the father’s household raised by the mother and the Independent Children’s Lawyer, at the time that she was interviewed on 22 December 2014, Y said of her stepmother “[she] never smacks us.”
When Y was asked about her mother, she talked about an incident that occurred a couple of weeks prior to the interviews where her mother had apparently threatened to bash up the child’s paternal aunt. The child also reported that the mother yelled at the children when they were naughty, when the mother was angry. However, Y did not think that her mother only yelled at her when she was in trouble. Y wanted the Judge to know the people to live in her house were, and that if she had to go and see her she wanted the mother to “agree not to fight”. Y said that she did not want to go to spend time with her mother.
When he was interviewed by Ms B, X appeared to be uncomfortable in talking about his family members, and he presented as reserved in his responses to questions about people living in his home. Ms B was of the view that X’s responses would not help the Court in developing and understanding his relationships with those he lives with.
X’s answers seem to have mostly comprised of “don’t know”. He said that the things he liked about his mother was “she’s my mum” and the best thing about his mum was “seeing her”. X did not have another “best thing” about his mum, did not offer anything that he did not like about her though he did say “I want to see her more”.
When he was asked to draw a house and write down who he wanted to live in his house he placed in the following order: “X, dad, brothers, B and A, Ms Beaumont, C, Y and C.”
During the observation sessions, X appeared to be excited when he saw the mother and he went directly towards her at a quickened pace and hugged her without hesitation. Y entered the room slowly, she approached the mother and hugged her. Both of the children asked after D. The children and the mother played a game of Uno. After about 12 to 15 minutes Y inquired after D again. When D entered the room, he complied with X’s request for a cuddle and he then went directly to Y and cuddled her. Mr S appeared reserved in his interactions with the children. The children engaged in further interaction with the mother, D and Mr S and according to Ms B, “Neither child demonstrated any adverse interactions prior to post the observation session with [the mother]… or others.”
When observed with their father, the children engaged in a game of Uno “with humour and attempting to outsmart the other”. When they were advised that the end of the session was near they were all “packed and ready to leave within no more than 2 minutes of the notice being given”.
The evaluation carried out by Ms B was limited because the other members of the father’s household did not attend the appointment with the Family Consultant. Therefore it was not possible to assess the children’s relationships with significant people beyond their parents and stepfather. Of particular concern to the Family Consultant was her inability to assess their relationship between the children and their stepmother “who appeared to have a critical role in the children’s day to day care.”
The Family Consultant speculated as to whether there may be other reasons for the stepmother not being available to be interviewed for the Family Report. Such speculations, particularly in circumstances where Ms B was not cross-examined, are of no weight.
Ms B also speculated about Y’s relationship with her mother being undermined by the child being provided with pocket money by the stepmother at a time when X was spending time with the mother. According to the evidence of the stepmother in the proceedings, the children received pocket money on weekends and on this particular weekend X received his pocket money when he returned from spending time with his mother. Once again, such speculation is of no assistance to the Court.
Relevantly, the Family Consultant expressed the following opinions:
a)If Y was to spend time with her mother that there was no suggestion Y would engage in behaviours which would place her safety at risk;
b)Both children appeared to have a bond with both of their parents;
c)Both parents appeared to demonstrate a lack of insight to the needs of the children to remain safe from being exposed to inappropriate adult behaviour or how such behaviour may undermine a child’s relationship with a significant person;[14] and
d)If the children were to be separated from a parent or significant person, they would require emotional and therapeutic support.
[14] such opinion was based on certain facts being established namely that the mother had threatened to hit other adults facilitating change over, and the father's belief that it is appropriate to make comment as to the children's feelings in front of the of the child at the time of changeover
Report of Ms O
On 10 June 2016 Orders were made by consent for the parties and the children to attend family therapy. Such family therapy was to be conducted by Ms O, with the parties intending for the family therapy to be reportable. At the time that the orders for family therapy were made, the matter was also listed for final hearing on 11 and 12 July 2016. Ultimately the matter did not proceed to final hearing on those dates, instead consent orders were made for the children to live with the father, and spend time with the mother each Saturday for a few hours.
It appears from Ms O’s report dated 5 July 2016 that she was only able to do one session with each parent and the children in the timeframe provided for in the orders of 10 June 2016.
Of the mother, Ms O said as follows:
a)that she was willing to attend a session;
b)that she indicated she was very sad and missed the children and that she had not seen the children since November 2015 and would like to see them on a regular basis;
c)that she was prepared to do family therapy, that she was willing to attend parenting courses and that “a lot of things happened, but hope it will change and I can see the children.”
According to Ms O the summary of events leading to the Court hearing were the same as the information provided in the Family Report dated 25 March 2015 and the Child Dispute Conference Memorandum of 2 June 2014.
Of the father, Ms O said as follows:
a)that he was willing to attend the session;
b)that he said he was concerned about the children and did not want to force them to attend family therapy or to have contact with the mother;
c)that the father said in the past the mother had been inconsistent in contact with the children and that they “have witnessed a lot of things that happened.”
d)That the father indicated there were problems at handovers and the mother used to be aggressive and not cooperative;
e)that while the father did not give examples of the mother harming the children he indicated that he feared for the children’s safety and had read about children being harmed or killed by parent; and
f)the father also indicated that he would not take the children to visit their mother if they did not want to and that he would only do what the children wanted to do.
It is easy to get caught up in the whirlwind of conjecture and speculation. However, the Court must base its findings on facts which have been established to the requisite standard, in this instance, on the balance of probabilities and within the ambit of s.140(2) Evidence Act.
Firstly, turning to the allegations of physical abuse. Those allegations are contained within the disclosures made by X to the mother, to the Police, to Ms D and the risk of harm reports contained in the material produced by the Department of family and community services.
The records produced by the Department have not only already been summarised earlier in these Reasons, but they were referred to in some length in the summary of submissions above. The records of themselves are somewhat historic, relating to May and September 2013 as well as during June and October 2014. The question is what do those records disclose? At their highest, they disclose in 2013 and 2014 Ms Beaumont was hitting her child with a belt and being punitive towards that child because the child was soiling herself. They also disclose that C was observed to have bruising to her legs in 2013. They disclose, at their highest, that C, X and Y were observed to have bruises to their face on one occasion each. They disclose, at their highest, that the children who live in the father’s household, in the opinion of the unidentified maker of the report, are frightened of Ms Beaumont.
Importantly for the Court, Ms Beaumont was never contacted by the Department or the Police in relation to the matters which are noted in the departmental records. She was never interviewed, charged nor was there ever any action taken. Ms Beaumont denies ever hitting any of the children, she denies belting her child because the child was soiling herself or otherwise punishing her in any way.
Neither the father nor Ms Beaumont recall any incident where Y had a bruise on her face as described in the records of the Department. While it is submitted on behalf of the Independent Children’s Lawyer that a parent would not miss such a bruise, there were no questions put to either Ms Beaumont or the father for example about the children’s daily activities, the frequency with which they engaged in rough play, whether they appeared to bruise frequently or easily, or indeed a whole host of other relevant matters which might have gone to establishing that the circumstantial evidence was such that the Court would make a finding that it was Ms Beaumont who was physically abusing the children and causing the bruises to not only their face, but their bodies.
Due to the nature of much of the evidence being untested opinion and second hand hearsay, the uncertainty of what in fact is alleged to have occurred, and the lack of detailed cross examination, on the balance of probabilities the Court does not find any allegation of physical abuse, in respect of the matters recorded in 2013 and 2014, as established.
Next to be considered are the disclosures made by X. To his mother X said that he gets hurt at home, that Ms Beaumont “choked him”, that Y gets a “smack everywhere” and she gets smacked in the face and that sometimes Ms Beaumont even yells that she will kill her. X also said that Ms Beaumont bites his ear and that she bent Y’s fingers so far backwards that Y was taken to hospital and had a cast which she wore for a couple of days. It was also said by X that C gets choked by Ms Beaumont and passes out.
Y denies that Ms Beaumont ever smacks her or that she is scared of Ms Beaumont. Ms D formed the view that while Y was being strategic in her responses it was because she wanted to stay living with her father. There is no evidence from the any hospital record to corroborate the disclosure made by X that Y’s fingers were bent so far backwards that Y was taken to the hospital.
No finding of fact is made that Ms Beaumont bent Y’s fingers backwards to the extent that she had to wear a cast or that Ms Beaumont choked C to the point where she passed out.
The Departmental records may go some way to supporting what X says, but the Court does not take this view. To do so would be to speculate not only about what could have been occurring in 2013 and 2014 such as to result in the reports being made, but also to come to the conclusion that in August 2016 X was talking about incidents that occurred in 2013 and 2014. Such records could only go to the general allegation that Ms Beaumont is physically abusive towards the children in the household. No such finding is made.
In relation to the disclosure made by X that Ms Beaumont chokes him, on the day of the alleged incident no marks were observed on X’s neck by anybody at his school or by the Police later in the afternoon. X did not appear distressed when he arrived at school nor did any of his teachers report anything unusual about his demeanour that morning. The apparent disclosures were made to the mother while X and the mother were on their own, which later X reported to his school Principal.
When speaking to Ms D, X said that Ms Beaumont stabbed him in the head with a pen, causing bleeding. He said that this occurred twice. Ms D noted that this was a different account to the one that was given by the mother who had indicated to the Family Consultant that Ms Beaumont had stabbed X with keys. X then said that Ms Beaumont stabbed him mostly with keys. X estimated that Ms Beaumont had choked him about 30 times, that she would grab him by the neck, started choking him and then for some reason stopped. On one occasion, Ms Beaumont apparently choked him to the point where he fainted.
As noted earlier, Ms D stated that there were no other indicators of abuse except what X had disclosed. Ms D opined that what X was saying occurred could be an exaggeration and that it was possible that Ms Beaumont was an irritable disciplinarian.
It is of significant weight to the Court, that the Police who spoke to X on the day of the alleged choking incident, did not take any steps to interview the father but more importantly the alleged perpetrator Ms Beaumont. The Police records show that when the Police spoke to X the only thing he said to them was that his step mother has done “nasty things” to him. They inspected his neck which had no visible marks or bruising to it. The mother was told by the Police that if she wished to make an official report in the future about alleged abuse she could contact the Police. The mother, as at the date of the hearing, had not done so. The veracity of her allegations that the children are subjected to physical abuse at the hands of Ms Beaumont, has to be questioned particularly in light of what she says X has disclosed to her.
Having considered all of the evidence carefully the Court does not make any finding that on the morning of 1 August 2016 Ms Beaumont attempted to choke or strangle X.
The other disclosures made by X, about being stabbed in the head with keys and pens were never tested in cross-examination. There is no particular incident that was relayed by X. No findings of fact are made in respect of this allegation of physical abuse.
In respect of the submissions that the Court notwithstanding that it could not make the necessary findings of fact, it should still make a finding that the children are at an unacceptable risk of physical harm at the hands of Ms Beaumont, the Court being unable to make any findings of fact (not just some), the seriousness of the allegations and a lack of proof of them, notwithstanding the “pieces of the puzzle” submission made on behalf the Independent Children’s Lawyer does not make that finding. While there may be some risk of harm to the children in the father’s household, the Court does not assess that risk as being unacceptable. In coming to this conclusion, the Court has also considered that the children spend significant amount of time at their grandparents, but does not consider that there is anything sinister about this.
As to the issue of the children being at an unacceptable risk of psychological harm, there was very little cross examination of the expert in relation to this issue. Such a matter is clearly within the ambit of the Family Consultant’s relevant expertise and the lack of any such evidence leads the Court to the conclusion that such a submission cannot be supported.
Indeed, the expert evidence is that both X and Y would need professional assistance if there was to be a change of residence from their father’s household to their mothers, and that Y would now that X has been living with the mother since August 2016, be the one who would transition with more difficulty if she was to live with the mother than if X was to be returned to live with the father would likely easily settle back into the father’s household.
Consequently, the Court finds that unacceptable risk of harm in terms of possible physical abuse or psychological abuse by Ms Beaumont of the children has not been established.
Benefit of Relationship
The benefit to the children of having a meaningful relationship with the father cannot be understated. Both Y and X have strong and developed relationships with the father.
X has a loving relationship with his mother, while Y’s relationship with the mother remains limited and needs to be protected and developed.
Section 60CC(3) Factors
Views of the child
The views of the children have already been noted elsewhere in these Reasons. In short, Y wishes to remain living with the father while X’s expressed wish is to live with the mother.
In 2015, the Family Report the report writer records that X was asked to draw a house that would be his house. He was asked to write down who he wanted to live in his house, and he was told he could have any one he wanted to live in his house. He placed the following order; “X, Dad, brothers, B and A, Ms Beaumont, Y and C in his house”.
X’s preference as to where he wants to live has changed, while Y’s has not.
The children are both of an age where their views ought to be accorded some weight, but will not be a determinative factor. This is more so because of the high conflict situation between the parents where the children are at a point where they are starting to be aligned, Y particularly.
It is but one of the factors which the Court has taken into account in coming to the view about what is in these children’s best interest.
Relationship of child with parents and other persons
Both parents love the children very much.
The children have a close bond with their father in particular who has been their primary carer since at least 2011. The father has not been available to the children very much because he was working very hard to provide for the family. Shortly before X went to live with the mother, the father was not only working during the week, but he was also working almost every weekend. This has had an impact on the children and their relationships.
Since X has been living with the mother, and hearing what the children have said, the father has changed his working hours so that he is now more available for the children. This will mean not only that his relationship with X can be repaired (if indeed it is damaged) at a reasonably quick pace, but also that the children will know that he will be around and available for them, both physically and emotionally. It will also mean that the care of the children will not fall so heavily on Ms Beaumont’s shoulders. The Court accepts the father’s evidence that he will not act in a negative manner towards X because of what X alleged Ms Beaumont has done.
Between 2011 and 2014 the children had been spending limited time with the mother, who at times, has not always made herself available for the children and who at times has placed her own needs above those of the children. The children’s relationship with the mother was even more severely limited from late 2014 to mid-2016, where Y did not spend any time with her and X did not spend any time with her for the last 12 months of that period.
The children have clearly been missing out on a relationship with their mother over the years. To place the responsibility of that mostly at the father’s feet would not only be unfair, but it would not be based on the facts. Both parents are responsible for this limited relationship. The mother in not placing the children’s needs above her own, and the father in not being as accommodating to the mother’s needs as perhaps he could and should have been.
The children have half-siblings in both households, and step-siblings in the father’s household. These are important and established relationships. The children themselves have a strong bond, but unfortunately they have been separated since 1 August 2016. It is not in their best interest that they remain so.
The children’s relationship with the mother is much more problematic. While Y keeps expressing that she does not want to see her mother and that she does not like her mother, it is likely that such is the result of the many years of parental conflict and the limited relationship she has been having with her mother. X on the other hand, until August 2016, was expressing similar views. He has since then had a 180 degree turn around, where he does not want to spend any time with his father even if Ms Beaumont is not around. His reaction at seeing his father during the most recent Child Inclusive Conference speaks differently.
Ms D gave some evidence with possible explanations for the children’s reactions, that evidence having been referred to earlier.
The Court finds that both children’s relationships with the father are overall stronger than their relationships with the mother. Y in particular will need some assistance in recommencing a meaningful relationship with the mother, but it is not a relationship that is beyond repair. X’s relationship with the father is capable of being repaired at a much faster pace and the indications are that X would settle back into the father’s household much easier than Y would settle into the mother’s household.
Parents’ participation in long term decisions, spending time and communicating with child
To say that the parental relationship is one of high conflict could almost amount to an understatement. These parents have not been able to work co-operatively for a long time, and their communication and ability to co-operate has deteriorated over the years.
There has been little to no agreement between them since at least the middle of 2014 about any long term decisions, spending time or communicating with the children.
The difficulties in the co-parenting relationship and the fact that the father has had sole parental responsibility since 2011 (as far as the parties understood it) have led to the mother not participating in many long term decisions relating to the children. She has also not always availed herself of the available opportunities to spend time with or communicate with the children.
Even in the face of the 2014 Court Orders, the time between the children and the mother as consented to by the parents, had fallen by the wayside. After Y stopped spending time with the mother, the mother did not take any action (whether by speaking to the father, through the Court or otherwise) to recommence that time. She did not seek an explanation from the father and she did not try to re-establish that time. X kept spending time with the mother for almost another twelve months after Y stopped. After X’s time ceased the parties were back in Court and the subject to further orders.
In the face of the Orders that the children live with the father, the mother retained X in August 2016 after he said certain things to her. True to say she did then file an Application for both children to then live with her, but she did not facilitate any time or communication between X and any members of the father’s household from that day onwards. X changed schools, so that he did not even get to see Y at school on a daily basis. He was completely cut-off from the family with which he had been living since 2011.
Parents’ obligations towards maintaining the child
This is not a factor of any significant weight, and there was very little evidence about the issue.
Likely effect of any changes in the child’s circumstances
Y remains living with the father, Ms Beaumont, A and Ms Beaumont’s two children. Prior to 1 August 2016, X was also living in the household. X and Y had been living with their father since perhaps about mid-late 2010 but certainly since March 2011.
X has been living with the mother, Mr S, D and the other three members of the mother’s household since 1 August 2016. He shares a bedroom with his little brother D, who at the time of hearing was almost four years old. X, of course, turned 12 in (omitted) 2016. He is starting high school at the commencement of the 2017 school year. The mother says in her evidence, that there is a spare bedroom in her home which is available for Y should she come to live with the mother.
The expert evidence is that the likely effect of any change to the living arrangements is going to have more of a negative impact on Y than it will on X.
The Orders which the Court makes will see the children returned to live with the father and spending significant and substantial time with the mother. The Court finds that such an arrangement will have the least detrimental effect on both children. It will ensure that X, who of the two is the more attached to the mother, will maintain that close relationship, while returning to his primary carer; and that Y will remain with her primary carer but also be given the opportunity to develop and grow her relationship with the mother.
Practical difficulty and expense of a child spending time with a parent
There is no practical difficulty and expense with the children spending time with either of their parents, irrespective of where they live.
Parties’ capacity to provide for the needs of the child, including emotional needs
Despite the recommendations of the Family Report writer that the children would require emotional and therapeutic support if there was a change of residence, since coming to live with her in August 2016, the mother has not taken any steps to provide such professional assistance to X to help him deal with the transition from one household to another particularly in circumstances where he has been completely cut off from everybody in his father’s household.
While it was submitted by the Independent Children’s Lawyer that the mother is the more likely of the parents to offer the children such assistance, her actions in not doing so to date, speak for themselves.
In restricting X’s relationship with the father and Y after the events of 1 August 2016, the mother has not acted in X’s best interest. She acknowledges that he misses his father and his sister, yet does not take any steps to meet with this emotional need of the child.
The father was clear in his evidence that he did not believe in counselling and that he would not be taking the children to counselling.
The Court is not particularly buoyed by either parties’ evidence in relation to their ability to meet the children’s emotional needs. Each of the parents is lacking in this regard, and they would do well to assist the children to deal with the difficulties of the high conflict situation which the parents have created.
Attitudes to child and responsibilities to parenthood of parents
The father was criticised by the Independent Children’s Lawyer in respect of his attitude towards the mother and his capacity to foster and encourage a relationship between the mother and the children. For example, during cross-examination, the father was asked questions such as “You’d try to be more co-operative in the future?” Similar questions were not put to the mother. While the Independent Children’s Lawyer is permitted and indeed should run whatever case the Independent Children’s Lawyer deems appropriate, the Court would have been greatly assisted by questions of a similar vein being put to the mother, such that there might be evidence upon which the Court could make findings about the mother’s capacity to foster and encourage a relationship between the children and the father. As it is, the evidence was left short and without such evidence the Court is entitled to draw a Jones & Dunkel inference.
There was some evidence given by the father which has caused the Court significant concerns in respect of his capacity to foster a relationship between the children and the mother and his insight into the effect of his actions (and stances) relating to such matters. For example, the father said that the children were not missing out at all in not seeing their mother. However, such comments have to be considered in context, and in light of all the evidence.
Firstly it is important to note that there was no expert evidence at all about the effect on these children not seeing their mother. While the Family Report and Child Dispute Conference Memorandum might hint at some things, the authors of those reports were not required for cross examination. For the Court to make any findings about these issues would be a matter of pure speculation. Even in parenting proceedings, the Court is bound by the evidence which is before it. While some findings are capable of being made depending on which evidence is accepted, when there is no evidence at all, no findings are permitted.
The father however also said that he always had a belief that the children should have a relationship with their mother.
The Court accepts that the father has always acted with the children’s best interest at heart, and that his actions in ceasing the time with the mother while reactive, can be understood in the scheme of what he said had been occurring for years – that is the children’s constant disappointment at their mother not keeping to the arrangements and the conflict between the parents.
The father raises a number of matters which he asserts are examples of the mother either undermining his relationship with the children, or examples of her putting her own needs before those of the children. The matters which the father raises are:
a)The mother not telephoning the children in accordance with the 2011 Orders and the children being upset as a result;
b)The mother cancelling or changing the arrangements to spend time with the children without sufficient notice, and the children being upset as a result;
c)The mother, while working in the school canteen, placing lunch orders for the children without checking with him first, in circumstances where he had sent the children to school with a packed lunch which they consequently would not eat. The mother says that she gave or bought them treats and that the children did not tell her they were not eating their lunch; and
d)The mother organising with the school, without any discussion with him, for the children to attend sessions with the school counsellor.
It is a fact that the mother has not discussed with the father at all what high school X is to be attending in 2017, not only in the face of the orders as they stand but also in the face of these proceedings.
The mother raises a number of matters which she asserts are examples of the father undermining her relationship with the children or examples of him displaying a poor attitude to his responsibilities as a parent. For example, the father insisting that she be present at every changeover and not permitting the children to spend time with her on the occasions when she does not personally attend. More importantly so, not facilitating time between the children and the mother because of what occurred at changeover.
Culture, Background and Lifestyle
In respect of the parents cultural heritage:
a)the mother is of (nationality omitted) descent although she does not know her family connections; and
b)the father identifies as Aboriginal and the children are linked into cultural classes at their school to aid in keeping with their heritage, however this is not a particular matter in which the father takes any active steps.
This of itself is a factor of extremely limited weight.
Family Violence
The matters of family violence have been dealt with elsewhere in detail.
Further Proceedings
There remains a risk that either or both X and Y will in the near future vote with their feet, if their needs and wishes are not appropriately accommodated in both households.
While the Court has not made any findings of fact or unacceptable risk of harm as submitted by the Independent Children’s Lawyer and the mother, this does not mean that the Court was not concerned about such matters. The evidence certainly discloses that there is some issue, but what it may be, is not a matter about which the Court can make a finding on the evidence as before it.
Parental Responsibility
Both parties seek an order for sole parental responsibility.
The question of parental capacity to implement arrangements and to communicate and resolve difficulties are very important issues in this matter.
There is sufficient evidence of poor behaviour, lack of a child focus from both of the parties and poor communications between the parties due to the parties’ behaviours that make the sharing of parental responsibility very difficult and almost impossible.
Given that the children will primarily live with the father and spend regular time with the mother, it is appropriate that the parent with whom the children reside has sole parental responsibility.
Conclusion
In the orders that the Court has made, safeguards have been put in place to ensure that the orders do not expose any person, but in particular the children, to an unacceptable risk of family violence.[46]
[46] as mandated by s60CG
In this regard, the Court is mindful that the time the children spend with the mother will of itself be a protective factor and that now having been made of the allegations, Ms Beaumont even if she wasn’t engaging in the alleged behaviour is now even less likely to do so.
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out at the forefront of these reasons.
I certify that the preceding two hundred and ninety two (292) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 10 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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