Ennis & Ennis

[2007] FamCA 1403

FAMILY COURT OF AUSTRALIA

ENNIS & ENNIS [2007] FamCA 1403

FAMILY LAW – CHILDREN – CHILD ABUSE – Allegation – emotional abuse – physical abuse – neglect

FAMILY LAW – CHILDREN – Best interests – splitting siblings

Family Law Act 1975 (Cth)

APPLICANT: Mr Ennis

RESPONDENT: Ms Ennis

FILE NUMBER: BRC 10178 of 2007

DATE DELIVERED: 20 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hogan

SOLICITOR FOR THE APPLICANT: Reeslaw

COUNSEL FOR THE RESPONDENT: Ms Lyons

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THIS DAY THAT

1. Except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children.

2. The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

2.1.They shall inform the other parent about the decision to be made;

2.2.They shall consult with each other on terms that they agree;

2.3.They shall make a genuine effort to come to a joint decision.

1. Notwithstanding the provisions of Order 2

3.1.The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.

3.2.The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

1. The children M born … November 1993 and L born … January 1995 live with the Father.

2. The children M and L spend time and communicate with their Mother at all such times as they might choose to do so and the Father will do all things necessary to effect the children spending time with or communicating with their Mother.

3. The children C born … December 2002, S born … March 2004 and W born … July 2005 live with the Mother.

4. The Father to spend time with the children C, S and W at all such reasonable times as agreed between the parties but failing agreement:

7.1.Each weekend from 4.30 pm Friday until 9.00 am Monday.

7.2.By telephone each Wednesday evening with the Father to initiate the telephone call between 7.00 pm and 7.30 pm with the duration of the calls to be viewed in light of the ages of the children;

7.3.From 4.30 pm on Friday 14 December 2007 until 10.00 am Christmas Day

7.4.From 10.00 am 1 January 2008 until 10.00 am on 15 January 2008;

7.5.Weekend time is suspended between 14 December 2007 and 15 January 2008 and will recommence on 18 January 2008.

1. Pursuant to s 65LA of the Act, the parties attend a post-separation parenting programme and the children M and L attend child-focussed counselling with Mr G or Ms H, with the programme and counselling to take place at the E facility, … T, and that the Father ensure that the children attend such counselling at all such times as scheduled and for as long as deemed necessary by the children’s Counsellor. Such Counselling can include the mother as and when deemed necessary by the children’s Counsellor with a view to the children being able to move to spending time with the Mother at the T Children’s Contact Centre. The Father will pay all costs of counselling.

2. Each parent will facilitate a telephone call to the other parent at any reasonable time that the children in their care wish to speak to the other parent on the telephone.

10. The Mother and Father shall:

10.1.Keep the other parent informed at all times of their residential address and contact telephone number;

10.2.Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;

10.3.Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

11. The parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

12. During the time the children are with either parent, that parent shall:

12.1.Encourage the children’s relationship with the other parent;

12.2.Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

13. All changeovers for time spend with the children be facilitated at the T Children’s Contact Centre and each parent pay their own costs of changeovers.  If the T Children’s Contact Centre is not open when a changeover is due to take place then changeover will take place at the McDonald’s Family Restaurant, …, T (South).

14. The interests, in these proceedings, of the children, M born … November 1993, L born … January 1995, C born … December 2002, S  born … March 2004 and W born … July 2005 be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

15. The child C be enrolled at N State School for Prep Year in 2008.

IT IS FURTHER ORDERED THAT

16. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17. The matter be adjourned to a Registrar’s Directions List at 2.00pm on 10 January 2008 in the Brisbane Registry of the Family Court of Australia.

IT IS NOTED that publication of this judgment under the pseudonym Ennis & Ennis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10178 of 2007

MR ENNIS

Applicant

And

MS ENNIS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. These reasons are given ex-tempore in a matter heard by me yesterday in the judicial duty list. 

2. I asked Ms Hogan, who appeared for the father yesterday, and Ms Lyons, who appeared for the mother yesterday, to discuss with their clients the principles enunciated in the decision of the Full Court in C & C and the constraints thereby placed on Courts in determining matters in the duty list. Within those constraints the Court must make a decision about the best interests of five children: M, born in November 1993, almost 14; L, born in January 1995, almost 13; C, born in December 2002, almost 5; S, born in March 2004, about 3 and a half; and W, born in July 2005, aged about 2 and a half.

3. The decision is made within the context of a statutory framework where on an interim basis equal shared parental responsibility is to be exercised and where the issues for determination by me are with whom the children, or some of them, might live, and the time that those children might spend with the other party as a consequence. 

4. It is mandatory for me to consider whether the children should spend equal time with each parent and if I determine otherwise, whether the children should spend substantial and significant time with each parent.  The latter expression is defined in the Family Law Act 1975 (“the Act”). 

5. The father contends that all five children should reside with him. It is common ground that M has lived with the father since the parties separated and L has lived with the father since about August this year, following an incident referred to in the material occurring with L in the mother’s household. 

6. The mother accepts, on an interim basis, that M and L should live with the father. In making that concession she does not concede necessarily the facts said to sustain that conclusion as alleged by the father but acknowledges that each of the two older children are of an age and level of maturity where their views must be taken into account seriously by the Court and she accepts that, at the moment, for whatever reason, each of the two older children are expressing a view that they would like to live with their father.

7. The Court has had the benefit of a report from a psychologist, Mr Z, who was jointly commissioned by the solicitors acting for each of the parties. Mr Z’s report is dated 18 October 2007.  The foundations for the opinions expressed in that report are:

   a)a consideration of the material filed on behalf of each of the parties;

   b)inspection of material subpoenaed from:

   i)the T Hospital;

   ii)the T Medical Centre;

   iii)the O Medical Plaza; and

   iv)the Department of Child Safety.

   c)Mr Z interviewed each of the parties; the mother’s partner, Mr B; and the children; both at the Legal Aid Office on 5 September 2007 and on that day Dr Z observed the children and the parties at the homes of each of the parties;

   d)Mr Z also saw the mother on 28 September 2007 and interviewed the father briefly by telephone on 17 October, 2007

8. In the event that all five children reside with the father and I find, as contended for on his behalf by Ms Hogan, that there is an unacceptable risk with respect to the mother’s care of the children, the father proposes that the mother have supervised contact at the T Contact Centre.

9. If I should determine that all five children reside on an interim basis with the father, but, on an interim basis, that I find that unacceptable risk is not made out, the father’s proposal is that the mother should have contact between 8.30 am on Tuesday until 4.30 pm on Thursday. 

10. In the event that I find on an interim basis that the three younger children should remain living with their mother, the father proposes that he should have contact to those - I am using the old language, I should say, simply for ease of expression and when I use term contact, clearly enough I am referring to the children spending time with the other parent. The father contends, in the event that the three younger children remain in the interim care of their mother that he spends time with them from 4.30 pm on Friday until 8.30 am on Monday. 

11. In the forthcoming holiday period it is common ground that the father has five weeks holidays, that five weeks commencing on 14 December 2007, which is the first day, effectively, of the Christmas school holiday period. In those circumstances the father contends that he should have, what has been referred to as “block contact” with the children during that five weeks so as to maximise his time with the children and to maximise the time that the children spend with their siblings. 

12. The mother’s proposal is that the three younger children should remain living with her and the two older children should remain living with the father. In those circumstances, assuming I make orders in accordance with that proposal, she is in agreement with the spend time with proposal of the father and says that the younger children should spend time with him from 4.30 pm on Friday until 8.30 am Monday each week. 

13. That proposal represents a change in the mother’s proposal as contained in her formal application and in the affidavit material filed by her. I was told from the Bar table that that proposal arose as a result of conversations between the mother and her legal advisors and she was firm in putting that proposal before the Court. 

14. During the holiday period the mother says that the weekend contact, as I will call it, should continue, but, in addition, there should be contact during the day for two additional periods during the week. 

15. This application is governed, obviously enough, by principles enumerated in Division 12A of the Act. I am cognisant of what the Act says about the way in which the proceedings should be conducted and, in particular, that I should conduct proceedings in a way that promotes cooperative and child focussed parenting by the parties.

16. I am also conscious of the fact that Division 12A permits me to receive as evidence evidence which would otherwise not be admissible pursuant to the ordinary rules of evidence and that s69ZT(2) permits me to give that evidence such weight as I think fit.

17. In this case, given the allegations of unacceptable risk, the involvement of the Department in respect of allegations of potential neglect and the like, I am satisfied that the circumstances are exceptional within the meaning of s69ZT(3) and, accordingly, I propose to take into account the importance of the evidence, the nature of the subject matter, the probative value of the evidence, the power of the Court to adjourn and the like in placing weight on evidence that I have received for the purpose of these interim proceedings that might not otherwise be admissible.

18. In particular, I am concerned to exercise appropriate circumspection about making findings about serious matters such as unacceptable risk of harm, whether physical harm, emotional harm or, indeed, unacceptable risk arising from neglect in circumstances where neither Mr Z has been cross-examined nor has any of the evidence on the face of the departmental records been subject to cross-examination and, of course, where the parties have not been subjected to cross-examination and I have had no opportunity to see them in the witness box.

19. Obviously the issues that I have just mentioned in brief, namely allegations of unacceptable risk arising from physical harm or psychological harm, and neglect, are directly relevant to what the Act calls “primary considerations” and also, of course, directly relevant to some of the “additional considerations”.

20. It is obviously necessary for me to consider, in particular, the primary consideration of protection for the children in making this interim determination and, as that section makes clear, that protection also extends to protection from neglect and not just protection from physical violence and the like. 

21. The proposals of each of the parties, as I have outlined, reflect the agreed fact that, at the moment, for whatever reason, the oldest two children are living with, and have expressed a clear desire to continue living with, the father. Clearly their views are important in this interim determination and I propose to take them into account in deciding that, in the best interests of the children, on an interim basis, those two children should remain living with their father. 

22. As I indicated to each counsel during the course of argument, I am minded to make orders pursuant to s65LA of the Act and, also, an order for the appointment of an Independent Children's Lawyer. Ultimately both parties conceded that each was appropriate.

23. Ms Hogan submitted, in effect, or posed the rhetorical question in argument as how much further can an Independent Children's Lawyer take the matter?  However, when I consider the factors enumerated by the full Court in Re K, it seems to me this is a case where: there are allegations of family violence; allegations of neglect, that involve the views, and the reasons for the views, of mature-age children; where there are assertions of unacceptable risk arising in various forms; where there has been involvement by the Department of Children’s Services; and where there is very high conflict between the parties. 

24. Also, given that I am making an interim determination, an Independent Children's Lawyer, in conjunction with the processes that that lawyer will engage in, can form an important part of a continued monitoring of the children’s situation pending the further determination of the issues between the parties, either by agreement or by a Court.  Accordingly I do propose to make an order appointing an Independent Children's Lawyer.

25. In respect of s65LA, as I said during the course of argument, it is mandatory for me to consider seeking the advice of a family consultant about the services appropriate to the parties needs before making the order. The section also obliges me to consider whether such an order is in the best interests of the children.

26. For reasons which will emerge, I consider that it is clearly in the best interests of these children for an order to be made under that section.

27. I have considered seeking the advice of a family consultant about the services appropriate.  I have decided not to do so. I am particularly persuaded by the fact that the parties have together, sensibly, decided to obtain a report from an independent psychologist who, in turn, clearly indicates the need for, and the appropriateness of, further counselling in assisting the parties and the children with future co-parenting arrangements, including in the immediate future. 

28. During discussion in argument it was agreed that an organisation called the E facility in T was appropriate. There was evidence before me that the supervised contact which had previously been ordered had broken down, for reasons which are not relevant to the particular issues before me and that the director of the contact centre, in consultation or in conjunction with the parties, suggested that the E facility was an appropriate place for that counselling to take place. 

29. Ms Hogan informed me from the Bar table, without objection, that in a recent case in which she was involved there was some difficulties in Relationships Australia providing that counselling in the T region. I am cognisant of the fact that resources are always stretched in regional areas in Queensland and it seems to me entirely appropriate in those circumstances that the E facility be the designated dispute resolution organisation that can conduct the s65LA counselling.

30. As I have indicated, the appointment of an Independent Children's Lawyer and the order pursuant to s65LA are, in my view, each of assistance in assuaging concerns that I have about the risk associated with the three youngest children remaining in the mother’s care. There is likely to be continued Court involvement in this matter by reason of the case management system now in place within this Court and at the end of these reasons I will make directions that the matter be referred to a Registrar of this Court for the making of further directions so that the matter can be further monitored within the Court system.

31. Those three factors together should be taken as indications of matters that do help to assuage concerns that I consider are present but which, on balance, exist within an ultimate finding that, on an interim basis, I cannot be satisfied that there is an unacceptable risk of harm for the purpose of making interim parenting orders.

32. The significant foundation of Ms Hogan’s submissions on behalf of the father was unacceptable risk of harm or neglect. She, in my respectful view quite properly, conceded that a high evidentiary onus exists in respect of making such a serious finding. She also conceded, again in my respectful view correctly, that that is particularly so in an interim case that has attendant with it all of the considerations I have earlier referred to. 

33. Ms Hogan’s submission was essentially that I should have significant concerns about the mother’s care of the children, speaking in broad terms, so as to be satisfied to the requisite standard that the younger children are at risk of physical and or psychological harm by being in the continued care of the mother. 

1. Ms Hogan in particular points to the differing accounts given of an incident with L. In particular, differing accounts were given as to the attribution of the perpetrator of and the circumstances in which, L sustained an injury.  Accounts given in the mother’s affidavit, effectively corroborated by Mr B’s affidavit in these proceedings, were inconsistent with other versions given by the mother, and probably Mr B, in particular to Mr Z during the course of preparing a report, and a version given to the police which is referred to in the tendered subpoenaed material.  Those inconsistencies are very troubling.  No doubt they will form a subject of inquiry at any subsequent trial.  Ms Hogan submits that the inconsistencies are one thing that should cause me concern.  She submits that another is the attitude, these are my words not hers,  to the responsibilities of parenting and capacity to parent exhibited by the failure of the mother to have, as her first instinct, the protection of L as distinct from the interests of her relationship with Mr B. I think there is merit in that submission as well and, again, I suspect that this is a matter that, at any trial of the action, is likely to be explored. 

2. Ms Hogan challenges, to some extent, the opinions of Mr Z. She particularly, instanced as an example paragraph 150 of his report where he concludes that:

   [The father] presented to me with less of the depth of understanding of his children’s needs than [the mother] did, and he was far less child focussed in his discussions with me than was [the mother]. 

3. In a similar vein, Ms Hogan challenges the foundation for paragraph 149 of the report when Mr Z observed the child W seeking his, (that is Mr Z’s) affection much less when he was not with his father. Ms Hogan points to the observations made by the police in material subpoenaed from them, about W also clambering over them.  Ms Hogan points to the concession made by Mr Z that there were “numerous suggestions and support for the notion that the mother is not attending adequately to the basic practical care needs of the three youngest children.” Ms Hogan emphasised particularly the fact that the children turned up for the report process with matted and uncombed hair, no socks and, in one child’s case, no underpants.  She points out that this was for a forensic interview with Mr Z, in the knowledge that it was for the purposes of a report to this Court.  In effect, Ms Hogan asks rhetorically, if that is the standard of care in those circumstances, what must it be like at home?  I think the points are well made. They are matters that cause me significant concern. 

4. I note, however, in that respect, that Mr Z’s report, I am pleased to say, includes a home visit and it seems from what Mr Z says in his report that he was acutely aware of those sorts of allegations when he went for the home visit.  It seems from the face of the report that he conducted the home visits (plural), to the homes of each of the parties after he had conducted interviews with the parties and it seems from the report that he was acutely cognisant of those issues that had been raised and was, as it were, on the lookout for general signs of neglect.

5. It might be expected as a corollary to the submission made by Ms Hogan, that all parents would present in their best light when they knew that a report writer was coming for a home visit.  Nevertheless, using the same logic employed by Ms Hogan, Mr Z raises no concerns in respect of what might be called the general atmosphere and care within the mother’s home. 

6. As I have indicated earlier, there is a conflicting factual account given even on the mother’s case.  It was conceded by her counsel that there is a conflict in the accounts given by her as to what occurred with L that prompted her move to her father’s household.  It is worth recording, I think, what Mr Z says at paragraph 145 of his report.  He says:

   I am concerned by the reports in the material from DOCS which I reviewed.  It indicates that numerous people who have been involved with [the father and the mother] have the opinion that each parent, but more so [the father], has been using the child protection and investigation authorities as fuel for their family law dispute. I would agree with these opinions.  Such behaviour is clearly not in the best interests of the children.  I am also concerned that either Mr [B] or [the mother] has been physically dealing with [L] in a way that left substantial bruises upon her.  However, I also note that [L] has appeared to have had much more difficulty accepting Mr [B] into her mother’s home and that her consequent behaviour may have placed great demands on her mother and Mr [B]. This does not excuse these two adults but simply provides a context.

7. Ms Hogan submits that, quite apart from making, the same point, in effect, that Mr Z makes, namely that is whatever might be said about it, it is not an excuse for the behaviour, it also speaks of capacity to parent, which, of course, is an important additional consideration. Ms Hogan submits that, if there was, in fact, acting out behaviour or improper behaviour by L in the sense of being defiant, oppositional and the like, the mother, even on her case, in conjunction with Mr B, has dealt with it in an inappropriate way.  Again, I think there is some merit in those submissions.  Ms Hogan’s point is that whatever be the context, and even if L was acting out or engaged in significant oppositional or defiant behaviour, the reaction by Mr B and the mother is what is at issue. 

8. Ms Hogan also points to the fact that, in terms of capacity to parent and exercising the responsibilities of parenthood, the mother is in a new relationship. The exact start of that relationship is unclear, on the present evidence. But, the parties met on the internet and have been living together for only about three months. 

9. Ms Hogan submits that, despite the very early stages of this relationship and despite the fact that Mr Z flags, as a matter for some concern, in his report that Mr B may have a criminal record more extensive than that to which he admitted to Mr Z, the mother introduced three very young children, in the immediate aftermath of a separation, to this new environment and that, too, is something I should be concerned about in respect of responsibilities of parenthood, capacity to parent and, indeed, other additional considerations which I must take into account under the Act.

10. There are allegations of domestic violence made against the father by the mother. In response to those Ms Hogan points to the subpoenaed document from the Queensland Police Department where the mother indicated to the police that the father has not been violent. 

11. Ms Hogan also points to two other documents where the mother has apparently said to her general practitioner, in circumstances where the parties’ relationship was in the process of breaking down, that the father has not been violent to the mother. 

12. Mr Z, on the other hand, says that his observations are consistent with the mother having been the subject of domestic violence and, again, I should, for completeness, quote what he says about that.  At paragraph 143 of the report he says:

    [The mother] presented to me as very emotionally distressed when she described what she recalled of the aggressive, intimidating, controlling and emotionally abusive behaviour she alleges that [the father] engaged in.  What she has reported is very complex and has a high degree of internal consistency.  Her personal presentation and her profile on the MMPI2 is very consistent with someone who has suffered the long-term effects of domestic violence. I would find it extremely difficult to accept that [the mother] has been able to fabricate what she has reported regarding her experiences with [the father]. This would be much more difficult for her to have done, should she be as mentally deficient as what [the father] has described her as.  I have not assessed her as suffering from anything more than a mild adjustment disorder in response to her experiences with [the father].

13. It seems to me that on an interim basis, in the circumstances I have outlined earlier, I am unable to make a finding that there is unacceptable risk to the children emanating from, what is called in the material, domestic violence. 

14. As I pointed out to counsel during the course of the hearing, domestic violence may well mean different things to different people and when a general practitioner says there has been no complaints of domestic violence, the general practitioner may be referring to one thing and may not necessarily be referring to the broad compass of behaviour encompassed by the definition of “family violence” which is the relevant definition for the purposes of proceedings in this Court. 

15. Finally, Ms Hogan submitted that a reunification of the sibling unit was an important consideration for me. I agree with that. She argued that even accepting that it might be argued that there are two sibling units (which was a reference to the fact that there were two older children and then a significant age gap to the three younger children) the reunification of the siblings was, nevertheless, an important consideration.

16. Ms Hogan also submitted that the stability in the former matrimonial home where the father lives with the two older children should be contrasted with what she described as the chaotic lifestyle presented in the mother’s household with Mr B and in that respect she points to police involvement and the like. 

17. Ms Lyons, in argument for the mother, acknowledged that there was an inconsistency in the mother’s account of what I will call, for reason of convenience, “the [L] incident” Ms Lyons says there is also an inconsistency in L’s account as reported by Mr Z.  This was a reference to Mr Z saying at paragraph 146 of his report that:

    [L] may have been liberal with the truth when I spoke to her as a way of making her current position clear to me.

18. Ms Lyons says there is no evidence to suggest that any behaviour of the type referred to in the incident with L has happened previously or would happen again.  She submits this is a one-off and it will not occur in the future. 

19. Ms Lyons also points to a number of carers potentially involved in the children’s lives if they come to live with the father.  In response, Ms Hogan pointed out that these were, in effect, a “safety net” in circumstances where the practical exigencies of the father working and the like might necessitate those arrangements. 

20. Ms Lyons says the father is working full-time and always has been.  Ms Hogan conceded that the mother was the “primary carer” for the children in the sense that the father worked outside of the home but points to the assertions made in the father’s affidavit with respect to the amount of the involvement in the children’s care. 

21. “Primary carer” is an expression that also can mean different things to different people.  It is an expression that frequently finds its way into expert’s reports and into judgments. Insofar as a determination is to be made in interim proceedings, with all of the limitations inherent in them, it seems to me that I should take account of the fact that the mother has, on any view of the current evidence, been the overwhelming carer for three children under five, with all of the issues inherent in same and in circumstances where, for some period of time, putting it in its most benign sense, the relationship between she and the father was in the process of breaking down.

22. Ms Lyons points to, and relies upon, the ultimate conclusion reached by Mr Z, in particular, at paragraph 151 of the report, where he says:

    I cannot recommend that the three youngest children live for the predominant amount of time with their father.

23. I have already referred to the fact that the report of Mr Z is before me without any opportunity for either party to cross-examine him. There has been no opportunity for me to ask questions of him. 

24. I have already referred to the fact that Ms Hogan makes submissions which attack the opinions and/or the foundations for some opinions arrived at by him and I have already indicated that, on a superficial basis, that there is some merit in that. 

25. However, Mr Z’s report is the only independent evidence before me. It is a report commissioned by both solicitors.  It is a report that, on its face, appears comprehensive.  It is a report which includes interviews with the parties and, as I have said, I am pleased to say, home visits to each of the parties’ homes and it is therefore, on an interim basis, evidence to which I should pay, it seems to me, significant regard. 

26. I should, in that sense then, record what I regard as significant matters of opinion expressed by Mr Z.  First, Mr Z records the clear views expressed by M and L, which are, in any event, the subject of agreement for the purposes of these interim proceedings at least, between the parties. 

27. Mr Z refers to the long history of alleged domestic violence allegedly perpetrated by the father. He reports, as I have indicated, the mother presenting as very emotionally distressed when talking about aggressive and intimidatory behaviour. I take account of the broad definition of “family violence” contained in the Act and, although I cannot, as I have determined, make findings about whether family violence occurred and, if so, the nature and extent of it, I can, it seems to me, take account of the opinion of Mr Z of the psychological presentation of the mother. Mr Z says he was struck by the father’s focus on shortcomings of the mother which were more evident than his focus on the children. He says at paragraph 144 of his report, that in comparison to the mother, the father:

    Had far less of an understanding of the children’s emotional and practical needs.

    He said that both the father and the mother:

    But more so [the father], has been using the child protection and investigation authorities as fuel for their family law dispute.

28. He records, obviously enough, that either Mr B or the mother have physically dealt with L in a way that has left substantial bruises on her and I have already referred to what he said about that in respect of the context in which the behaviour occurred.

29. He says that there are numerous suggestions and support for the notion that:

    [The mother] is not attending adequately to the basic practical care needs of the three youngest children.

30. He says that the children:

    Appear to be more comfortable with their mother and her partner than they did with [the father].

    He is referring there, obviously enough, to the three younger children. And he also says, at paragraphs 149 and 150 of the report, that attachments by the children formed with their mother are far more secure than those they have formed with their father and that the father has less of a depth of understanding of the children’s needs. 

31. It is important, I think, to record the ultimate conclusions reached by Mr Z in the context of these interim proceedings.  I have already referred to one, that Mr Z says he cannot recommend that the three youngest children:

    Live for the predominant amount of time with their father.

    Secondly, that the attachments of those three younger children, I should again say, with the father, do not approach those with the mother and that the mother is the primary carer. 

32. I place particular significance on this opinion.  Mr Z says:

    A change in where and, I interpose, the youngest three children live would be far more harmful for them than if they were to remain living with their mother.

33. He bolsters that opinion by offering the further opinion that the father:

    Does not have the capacity for empathy, patience and flexibility to have the primary care of the three youngest children.

34. I should also say that Mr Z deals specifically with the issue of equal time and, in effect, substantial and significant time and concludes, as I have indicated, that the three younger children should spend a much greater proportion of their time and have their day to day care met by their mother.   

35. The first relevant primary consideration is the benefit of a meaningful relationship between both parents and the children. I have said in trial judgments delivered by me that the primary considerations are expressed in an odd way. The Act makes it clear that this Court is not to presume that an amount of time should flow from any particular set of circumstances. Yet, in stark contrast to the additional considerations, the primary considerations are expressed as, in effect, a self-fulfilling axiom.

36. It seems to me that the only way in which either of the primary considerations can have meaning is if this Court makes findings upon which it can be concluded that, in the particular circumstances of a case, and for the particular children the subject of proceedings can have as meaningful a relationship that is beneficial to each of them as the circumstances of a particular case permit. 

37. In this case, that has particular poignancy in respect of the two oldest children. There can be no doubt that, axiomatically, the two older children would benefit from a relationship with each of their parents.  The particular circumstances, some of which I suspect might be explored in further report material to be presented to the Court at a trial and some of which, I suspect, will be further explored as a matter of fact and evidence at any trial of these proceedings, indicates that, for the moment, both of those children have expressed a firm view about what they consider to be the meaningful relationship with each of their parents. 

38. In effect, commendably in the case of the mother as it seems to me, she has, for the moment, despite what clearly I think it is fair to say on the evidence are her reservations about how this might have come about, the parties have determined to respect those views and to determine that the meaningful relationship is bounded by the particular considerations applying to those two children at the moment.  Bearing that in mind, and bearing in mind the opinion of Mr Z, I, too, am prepared to respect that in considering that primary consideration. 

39. Similarly, in respect of the three youngest children, the benefit of a meaningful relationship can only be referenced by such facts as are able to be found with all of the constraints inherent in an interim process.  It seems to me that for the moment, by which I mean pending any agreement between the parties or trial of this action, that the best prospects of a meaningful relationship with each parent that has benefit to these children is by them spending the great bulk of their care giving time with their mother. 

40. Similarly, whilst it is plainly sensible (and mandatory) for me to consider the need for protection of children from the specifics of harm referred to in the legislation, one cannot consider that in abstract, but rather only by reference to such findings as are able to be made in particular proceedings relating to particular circumstances and particular children.  I am not prepared to find, on an interim basis, given all of the restrictions inherent in it, that there is an unacceptable risk being posed to either the older two children or to the youngest three children by the father in terms of alleged family violence. Nor am I prepared to conclude on an interim basis on the basis of the evidence before me and bearing the evidentiary onus in mind, that there is an unacceptable risk with respect to the children being in the mother’s care until trial, either on a predominant basis or for the purposes of spending time with the children at all.

41. It should already be clear by reference to the matters that I have referred to, that I have had in mind a significant number of specific “additional considerations”, in particular the responsibilities of parenthood, the capacity of each of the parties to parent, the capacity of each of the parties to co-parent, the extent to which either party or both parties will promote the relationship of the children with the other party, and the practical effects of contact..

1. I need to consider those matters in the context of the overall Objects and Principles of the Act and in doing so I consider that although I have reached the conclusion that, I have indicated with respect to the predominant care of the three younger children, it is clearly in their best interests that they should have the opportunity to develop and build a relationship with their father by spending time with him.

2. In reaching that conclusion I should also say, for the sake of completeness, that I have considered the provisions of ss60CC(4) and (4A) which oblige me to take into consideration the nature of the parenting relationship that has existed and, in particular, the nature of the parenting relationship and the extent to which the parties have contributed to the parenting of the children in the post separation period. 

3. Each of the parties seem to concede that whatever be the true facts of why the present situation is such that it would be counter-productive, and by counter-productive I mean counterproductive to the best interests of the two children, to make orders forcing M or L to have contact, which they clearly do not want to have and which, on the evidence, they are highly likely to resist.  But as I have indicated earlier, I do intend making orders for counselling and I do intend making orders for the appointment of an Independent Children's Lawyer. 

4. There is, in my judgment, benefit in the younger children having and developing a post-separation relationship with their father.  Given the findings, or perhaps more accurately the lack of findings, I have made, there is no reason that I can see to restrict time with the father beyond those matters which the exigencies of caring for the older two children, earning a living, and the like, dictate. 

5. Specifically, I should record in that respect that the father works full-time.  He has two early teenage children to care for and there will, under my judgment, be times when he has the care of five children.  The mother has three children under 5 to care for for the predominant amount of time. Whilst the father works full-time, the mother does not, and I note that the child C is commencing prep next year.  Predominantly, I assume, it is essentially for those sensible practical reasons and all of the exigencies involved in caring for five children (the enormity of which task should not be underestimated either by me or by either parent) that regular time with the children by each of the parties has been focussed around weekends. 

6. The Friday afternoon until Monday morning time which, a proposal by each parent, given the central judgment I have made about where the children will reside in this interim period, provides for the younger children to see their father three nights a week. I consider that is in their best interests.

7. In respect of holiday contact, I specifically asked Ms Lyons, who appeared for the mother, why contact should be restricted in the way that the mother suggested. 

8. I think it is fair to say that Ms Lyons could come up with no argument to support that conclusion save to say that they were her client’s instructions. I think there is merit in the argument that during that holiday period, given that the father is, as the evidence indicates, on leave for five weeks, that the maximum amount of time that the siblings can spend with each other, consistent with their overall best interests and care, the better. I think it provides a good opportunity for the father to have meaningful time and to have a meaningful involvement in the younger children’s lives and it is a good opportunity, by the circumstance of where it falls in a chronological sense, for that to occur relatively soon after separation and in the midst of what has been a highly acrimonious and conflictual situation. 

9. However, I am conscious of the fact that the youngest child is not yet 2 and a half, the father, even on his case, has not had the full-time care of five children, including three children under 5. Accordingly what I propose to do is to structure orders that would allow the father to have what has been called “block contact” from 14 December up until the Christmas contact that has been agreed between the parties, for him to then deliver the children back to the mother so that she could spend her Christmas contact with the children and a block period of about a week or so, and for then the father to have the remaining two weeks of his five week holidays with the children after that.  After that there should be weekend contact as I have ordered.

10. Now I propose, as I have indicated, to appoint an Independent Children's Lawyer and to order s65LA counselling with the E facility in T. And what I will do is make the usual directions to transfer this matter to a registrar for the usual directions for the matter to be put onto a Judge’s docket.

    ORDERS DELIVERED  

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate

Date:  4 December 2007